Connie, who asked that her last name and the name of her employer be withheld, since speaking publicly about the travel ban would lead to repercussions at work, was born in South America, arriving in the U.S. when she was 2. She has lived in different parts of the country and traveled all over the map, but for the past few years, she’s been based in Atlanta. As a flight attendant, she has developed a sense of empathy for her passengers. “We encounter so many people on a day-to-day basis,” she says. “You always wonder what kinds of walks of life people come from and what experiences they’ve had.” Beyond the initial shock and confusion, the fallout from Trump’s travel ban has been severe on airport workers, she says, many of whom share in the heartbreak and outrage that have led to mass protests, but are unable to express it. “It definitely takes a toll on us.”

The ban, which was immediately challenged in courts nationwide, was halted last week following a ruling by a federal District Court judge in Seattle. On Tuesday, at a hearing before a three-judge panel from the 9th Circuit Court of Appeals, Department of Justice lawyers fought to reinstate it. In oral arguments that were live-streamed for the public, DOJ attorney August Flentje argued that the president has vast powers in assessing terrorist threats; when asked by one judge if such determinations are “unreviewable,” Fientje answered yes. The judges seemed unconvinced by the Trump administration’s argument but whatever the ruling, many speculate the matter will reach the U.S. Supreme Court. In the meantime, even as families cleared to enter the U.S. are reunited with relatives and loved ones, much fear remains about what comes next.

Connie was working at Atlanta’s Hartsfield-Jackson Airport on Sunday, January 29, when thousands of protesters arrived to rally against the ban. Eleven people had been held at the airport over the weekend, including a young child and an elderly woman, who had since been released. People came in droves, chanting, waving signs, and staying until it got dark. Inside the airline lounge, employees quietly discussed the protests. Many were supportive, Connie said, but were cautious about saying so. “It’s a really weird environment when you’re in uniform, because you have to be very careful about the way you word things, especially when you’re out in public.”

Protestors write letters to Donald Trump in opposition to his travel ban during an interfaith rally for Muslims and refugees at the Lutheran Church of the Redeemer on Feb. 4, 2017, in Atlanta, Ga.

Photo: Jessica McGowan/Getty Images

As a progressive, Connie is not new to politics or organizing. She went to the Women’s March in Washington, D.C., and has spent the past several weeks making phone calls to her local representatives in Georgia. But Trump’s executive orders shook others she knows out of their complacency. “You can definitely see people waking up — people that weren’t talking about Trump pre-election, who are taking what he says seriously. And they’re getting nervous.” Among her co-workers, many of whom carry foreign passports, people worry about their own families as well as their passengers, wondering what other countries Trump might try to target. “We worry about the places that we go and how they’re going to treat us being Americans.”

Long before the election, Connie had been deeply dismayed by videos and reports of people being escorted off airplanes just because they were speaking Arabic. As a flight attendant, she says, “that’s where you’re kind of at a crossroads between your own personal human decency and respecting that you’re not representing yourself when you’re in uniform, you’re representing a multibillion dollar corporation.”

In the days after Trump won the presidency, she says, she confronted a colleague who whispered concern about a pair of Arabic-speaking men during a flight to Chicago. The flight had been delayed for hours due to mechanical issues, Connie says; one of the men had approached her, saying they were going to a funeral and were worried they might miss it. The plane eventually took off; as they approached the city, one of the men asked if they could move from their seats in the far back rows to empty seats closer to the front, so that they could exit quickly. “I was like, ‘Absolutely,’” she said. Moments later, her fellow flight attendant quietly asked about the men, telling her that passengers were expressing suspicion. Connie was angered by the insinuation. “If I felt like I was in a position where I was going to put my passengers, my job, my life in danger, then I would say something,” she said. “And this is not what’s going on here.”

With people constantly fed so much misinformation by Trump, it is inevitable that some will feel paranoid, she says. Especially in the South, in the states where people voted for Trump, “I think that now it’s so important for people to stand up and say, ‘No, that’s wrong.’”

Protestors crowd the sidewalks at Atlanta’s Hartsfield-Jackson Airport to denounce Donald Trump’s executive order restricting refugees and travelers from seven Muslim-majority countries, Jan. 29, 2017.

Photo: Tami Chappell/AFP/Getty Images

One week after the protest in Atlanta, across the state border to the north, Fuad Sharef Suleman and his family were scheduled to arrive at Nashville International Airport, after an 18-hour journey from Iraq. It was Super Bowl Sunday and the game was well underway, yet some 200 people had come to the airport that night to greet them. Suleman had been traveling to Tennessee with his wife and three children when Trump’s ban was announced; they found themselves stopped by authorities in Cairo and sent back home. Suleman was devastated. He had worked as a translator in Iraq following the U.S. invasion, which turned him and his family into a target. They waited two years for a special immigrant visa to come to the United States. When the visas came through, Suleman and his wife sold their home, quit their jobs, and took their kids out of school, ready to settle in Nashville.

In the days after they were barred entry, attorneys, elected officials, and activists with the Tennessee Immigrant and Refugee Rights Coalition called on U.S. officials to allow the family into the country. Nashville is home to the largest Kurdish population in the United States; many city residents wrote letters and called politicians to voice their opposition to the ban. At an evening rally and vigil on February 1 — part of a statewide day of action that saw events from Memphis to Chattanooga — a speaker announced to cheers that the pressure had worked: The Suleman family would be arriving in Nashville within days.

Among those who came to the airport Sunday night was Suyapa Faulk. She stood at the very front of the crowd, holding a sign that said “Welcome” in Kurdish. Faulk is originally from Honduras, but she moved to Nashville in 1993, speaking English with a slight Southern twang. The year she arrived, the city received an influx of Iraqi Kurds targeted by Saddam Hussein, who had waged chemical warfare against the country’s semi-autonomous Kurdish region. Working at the Head Start program in Davidson County, Faulk got to know a lot of the small children who arrived with their families. She came to love them all, she says, but “I can’t deny it, my very favorite one was a child named Beimal.”

Born in a refugee camp in Turkey, where her parents lived for years, Beimal grew up in Nashville. As the years passed, Faulk occasionally ran into her around the city: at the middle school where she tutored for a time; at Edwin Warner park, a go-to gathering spot for Nashville’s Kurdish community. Last year, Faulk was hospitalized at the Vanderbilt University Medical Center when she spotted one of her former Head Start students, now an adult, who told her that Biemal was there too, just a few floors away, now working as a nurse in the intensive care unit.

“It was Biemal that taught me how to write Latin Kurdish,” Faulk said, showing me her sign. To Faulk, Trump’s travel ban felt personal, not just because of her own immigrant background, but because of the kids who defined her arrival to the U.S. almost 25 years ago. She realized how much it meant to her that she had helped welcome refugee children to her adopted home. “I am so proud to be able to welcome this Kurdish family,” she said about the Sulemans. “I just wish I could take them into my home and let them live there.”

At Nashville airport, where Fuad Sharef & his family just arrived after being sent back to Iraq last week. Huge crowd came to welcome them. pic.twitter.com/lLzV8Kxz9b

— Liliana Segura (@LilianaSegura) February 6, 2017

Just before 8 p.m., the crowd broke out in cheers as Suleman and his family came into view. They began to wave; his wife, Arazoo Ibrahim, held a bouquet of flowers, their daughters held large pink teddy bears, and their 19-year-old son carried a football. As the family received hugs and handshakes, people began chanting, “Welcome home! Welcome home!”

Looking happy and tired, Suleman spoke briefly in the ticketing area. “Today is a very important day in my and my family’s life,” he said. “It marks the first day of my new life in Nashville, Tennessee, in the United States of America.” He thanked everyone who had supported him and his family over the previous week — “especially my fellow Nashvillians,” like Mayor Megan Berry and Democratic Rep. Jim Cooper, who stood by as he spoke. Nawzad Hawrami, of the Salahadeen Center, a mosque in South Nashville, welcomed the family to “small Kurdistan.”

With the family exhausted, TIRRC co-director Stephanie Teatro said good night to the crowd, thanking them for their “Southern hospitality.” As people left the airport, Nashville Metro Council Members Brett Withers and Mina Johnson lingered. Withers, one of two LGBTQ elected officials in the city, recalled the struggles of the gay community decades ago. “We had a saying then, ‘Silence Equals Death,’” he said. “And that’s where we are today.” Johnson, the first Japanese-American member of Nashville’s Metro Council, invoked the upcoming anniversary of Franklin Roosevelt’s 1942 executive order that led to the internment of Japanese people on U.S. soil. “We have to make sure that never happens again,” she said. “I’m so happy that Nashville is leading as a welcoming city. I just want to be sure that’s what we are.”

Top photo: Kareema Sabdah, a Palestinian immigrant and American citizen, hugs her daughter, Jenna, during an interfaith rally for Muslims and refugees at the Lutheran Church of the Redeemer on Feb. 4, 2017, in Atlanta, Ga.

The post “You Can Definitely See People Waking Up” — Scenes of Red State Resistance appeared first on The Intercept.

Benjamin brought Dolores Williams, a friend and fellow teacher who recently retired. Under gray skies and a chilly drizzle, they arrived at the airport around the 4 p.m. start time to find a sea of people already there, with more pouring in on the MARTA, Atlanta’s public rail system. Protesters were young and old, of all races, waving signs and pumping their fists, cheering as drivers honked their horns in support. Many brought their kids. Over chants of “Say it loud! Say it clear! Refugees are welcome here!” Williams and Benjamin expressed solidarity with those targeted by the Muslim ban and indignation over Trump’s vicious portrayal of foreigners. “This nation was built on the backs of immigrants — those who came on their own accord and those of us who were brought here in chains,” said Williams. “And for someone to say, ‘I’m gonna build a wall’ like it’s Berlin, to stop immigrants from coming — it’s wrong. It’s wrong.” A Brooklyn-born black woman who adopted the South as her home years ago, Williams pointed out that it took Americans of all stripes to win the victories of the civil rights movement. “It’s a shame that 50 years later we’re still doing the same thing.”

Atlanta’s airport is the busiest in the world, home to Delta Air Lines and a major point of entry to the southeast United States. On a hotel shuttle earlier that day, a Delta employee told me Trump’s directive had prompted mass confusion among the company’s foreign workforce, many of whom came from the seven countries singled out by the order and who regularly travel in and out of the U.S. Earlier that weekend, 11 Muslim immigrants had been detained at Hartsfield-Jackson, among them a child and a 76-year-old grandmother. Congressman John Lewis, whose district is home to the airport, showed up to push for their release, calling it “a dark hour for America.”

Yet while Sunday’s demonstration was fueled by the emergency at hand, it was filled with a broader sense of urgency — and a unique sense of local history. Many protesters invoked Atlanta’s role in the civil rights movement, with Rep. Lewis serving as an iconic reminder of the power of protest. The same was true of other rallies across the South, in states that voted for Trump. In Birmingham, Alabama, on Saturday, protesters gathered at Kelly Ingram Park, where Bull Connor once unleashed police dogs and fire hoses on activists fighting Jim Crow. The next day, the Birmingham airport saw a protest of its own. While there were no dramatic scenes like those at New York’s JFK Airport or Dulles International in Washington, D.C. — where teams of heroic lawyers fought to release Muslim travelers trapped by the Trump administration — solidarity protests at smaller airports like Raleigh-Durham in North Carolina and Austin-Bergstrom in Texas drew impressive crowds. At the Birmingham Rally for Refugees and Immigrants, participants drove to the airport from Montgomery and elsewhere to make their voices heard.

Protesters rally at Birmingham-Shuttlesworth International Airport on Jan. 29, 2017.

Photo: Courtesy Ann Sydney Taylor

The rallies throughout the South have continued this week, a powerful rebuke to recent ahistorical arguments dismissing public protest as the leisurely purview of coastal elites. They are also an important visual reminder of the large swaths of immigrant communities throughout the region, which have grown exponentially in recent years, a phenomenon central to Trump’s scaremongering presidential campaign. It is no coincidence that in cities like Louisville, Kentucky, and Charlotte, North Carolina, whose foreign-born populations have risen sharply since 2000, thousands came out to protest Trump’s executive orders. Louisville Mayor Greg Fischer called it a “pivotal moment” for the country, speaking alongside immigrant and civil rights activists at an amphitheater named for Muhammad Ali.

Many in the South have been personally impacted by Trump’s executive order. Among those most cruelly affected last week was a man named Fuad Sharef Suleman, who was traveling to Nashville, Tennessee, with his family, only to be blocked by authorities in Cairo. In addition to a significant Somali population, Nashville is home to the largest Kurdish community in the U.S., with many arriving as refugees from Iraq in the early 1990s. Suleman once worked as a translator in collaboration with USAID, a job that could put his life in danger in the escalating war against the Islamic State. In anguished statements to reporters on Saturday, Suleman said he and his wife had waited for two years to obtain a special immigrant visa to the U.S., quitting their jobs, selling their house, and taking their three children out of school. Suleman was distraught and bewildered by Trump’s order, saying he had believed the U.S. was a democracy. “It is just like Saddam Hussein’s decisions,” he said.

Nashville residents joined the nationwide protests over the weekend, rallying in front of the offices of Republican Sens. Bob Corker and Lamar Alexander. The public pressure appeared to get results: Both lawmakers issued statements expressing concern about Trump’s order. While their words fell far short of real condemnation — Corker, who chairs the Senate Foreign Policy Committee, called the order “poorly implemented” — they were among the few national politicians to say anything at all. Protesters also called on Mayor Megan Barry, who spoke at the event, to make Nashville a “sanctuary city,” asking her to block deportations from city jails. The same demand was made of Atlanta Mayor Kasim Reed. With mayoral elections coming up, a number of Atlanta residents made it clear at the airport rally that they will be watching what local politicians choose to do in this moment.

One such protester was Shawna Pennywell, who came with her husband, Styron, their 18-month-old son, Conor, and their daughter Emerson, who was celebrating her birthday. On a large white posterboard leaning on her brother’s stroller, Emerson had written, “My birthday wish is to let Muslims come here and have a great life,” along with a drawing of a woman dressed in an abaya. “I can’t change the election,” her mother told me. But she can pressure local legislators to resist Trump’s agenda.

The Pennywells are among the many black Atlantans who came out from the 5th Congressional District, which Donald Trump smeared as “horrible” in his Twitter tantrum toward Rep. Lewis. After the incident, which took place on Martin Luther King Day, the family went to the Barnes & Noble in Edgewood, “in the heart of our plagued, crime-infested city,” Shawna Pennywell joked. They bought “Preaching to the Chickens: The Story of Young John Lewis,” a children’s book by Jabari Asim, along with Lewis’s “March” trilogy — part memoir, part graphic novel about his years in the civil rights movement. “We have read them in the last week,” she said enthusiastically, admitting that she may not have gotten around to doing such a thing if it were not for Trump. Many Americans had the same impulse: Sales of Lewis’s memoir skyrocketed immediately following the controversy. For Styron Pennywell, this is the sole silver lining to Trump’s election. Trump’s actions and rhetoric are so bigoted and extreme, it is motivating people to get on the right side of history. “This is like Civil Rights 2.0,” he said. “We’ve had slavery, we’ve had Japanese internment camps. A ban on Muslims leads to a ban on — what’s next? So, we have to come together to support one another.”

Like the Women’s March that galvanized record numbers of protesters across the globe, the action in Atlanta was organized by women. Among them was Asma Elhuni, a hijab-wearing legislative intern at CAIR. Like Linda Sarsour, who was viciously targeted by racists following the D.C.-led demonstration she helped mobilize, Elhuni knows too well what it means to organize high-profile events — or just navigate life — as a visually identifiable Muslim. On the day before the protest, as news and social media swirled with reports of families being detained across the country, Elhuni caught a stranger taking pictures of her at a coffee shop in East Atlanta. She confronted the man, filming him on her phone as he came toward her with a smile, and sat uncomfortably close. He called her “uptight,” a “bitch,” and asked if she had a green card, yet she kept her cool, later posting the footage to Facebook. The video went viral. At the airport, strangers came up express their gratitude and admiration for Elhuni, some pausing to take selfies with her. “What people don’t realize is that this is actually the third time in two weeks that people have taken a picture of me,” she told me. “I happened to catch hate on camera, but this happens to women all the time.”

In the rush to cover the astonishing spread of weekend protests across the country, many in the press described the actions as “spontaneous.” But they could not have happened without the local activist networks that have existed for years. In Atlanta, Elhuni was joined by Azadeh Shahshahani, a veteran human rights attorney and the legal and advocacy director of Project South. The group has spent decades fighting for racial justice in Atlanta and beyond, in some of the most challenging political climates. At a recent MLK Day event, Shahshahani urged people to expand the scope of their work, including through physical travel, as protesters at Standing Rock have done. “We have to go as far as we can,” she said. “For us to really survive, we can’t work in silos anymore.”

Demonstrators hold signs and chant at Hartsfield-Jackson International Airport during a protest to denounce President Donald Trump’s executive order barring citizens of seven predominantly Muslim countries from entering the U.S., Jan. 29, 2017, in Atlanta.

Photo: Branden Camp/AP

Shahshahani spent much of the past several years fighting record deportations and prolonged immigrant detention under the Obama administration. If there is so much fear now over the Trump administration’s immigration plans, it is only because Trump has vowed to accelerate a process that was cruel and extreme to begin with. Among those who have felt this pain firsthand was a young woman named Leydiana Mungia, who came to the protest draped in a Mexican flag. She was there with two friends, who declined to be interviewed, instead asking her to speak on their behalf. Mugia explained that their father had been deported a few years earlier — “They probably don’t want to cry for you,” she said. While they came from different backgrounds as the Muslim immigrants detained inside airports over the weekend, they knew the anguish of being ripped apart from family by government policy. Mungia, too, once had family who had been undocumented, but they managed to get their papers. Others should have the same opportunity, she said, calling the protest “an American fight. This is for everyone who has been denied access here.”

Another first-generation American was Luke Cho, a student at the University of Georgia. His story is typical: His parents moved from South Korea to Chicago, where he was born, and then brought him to Atlanta, which he considers his hometown. Like many immigrants and children of immigrants, Trump’s election has shaken his sense of American identify. Cho’s parents were not particularly political when he was growing up, he said, yet his father “really wanted to vote” in the past election. Since it was Cho’s first time voting, he planned to go with him — “It was supposed to be a special father-son moment.” But his dad discovered he had been purged from the voter rolls. He is hardly alone; Republican efforts to disenfranchise voters have been largely successful in Fulton County, where he lives; since 2014 alone, hundreds of thousands of voters were purged from Georgia’s voter rolls. But it felt deeply personal nonetheless. “It was sad to see that moment taken away,” Cho said.

For Cho, the election has awakened a desire to see his hometown live up to its history of civil rights activism. “Atlanta is that city that has to lead the South in movements like these,” he said. “New York is representing their region, L.A. is representing the West. So Atlanta has to represent the Southeast and let others know that we’re here. We have a voice.”

As evening fell and some protesters started to head home, others took their signs and chants inside, circling the baggage carousels. A man parked himself next to the restroom with a sign reading “Resist,” while a woman greeted arriving passengers. Airport security stood by, allowing protesters to move freely. Reports from other protests that night carried accounts of police in riot gear making arrests. There was no such escalation in Atlanta — but that did not mean police abuse was far from anyone’s mind.

Near baggage claim, I met Becky Rafter, a longtime organizer and executive director of Georgia Women’s Action for New Directions. She talked about the need to connect Trump’s executive orders with the many other ways government criminalizes entire communities, often with lethal violence. In Atlanta, she pointed out, “just two days ago, a black man was shot by the police. Again.” The man, Deondre Phillips, has barely made news despite the highly questionable circumstances of his death. In one local Fox report, police say they ordered Phillips out of his car after they smelled marijuana and that he later “lunged” back into his car, attempting to flee before being shot and killed. As a white woman in the South — a group that came out for Trump — Rafter feels obligated to stand up against all forms of state violence that target black and brown people.

Rafter was accompanied by Sonali Sadequee, also a longtime activist; Sadequee and Rafter were impressed with the turnout at the airport, which attracted tons of people they had never seen before. More than a decade ago, Sadequee was forced to redirect her energy to respond to an emergency in her own family, when her 19-year-old brother, Shifa, was abducted and arrested in Bangladesh at the behest of the Bush administration. Shifa was accused of trying to carry out a terrorist attack. Although the case against him was weak — there was no proof he had taken steps to devise an actual plot — he was treated like the most dangerous of terrorists, stripped of his clothes and put on a CIA flight, his whereabouts a secret for days. A 2014 Human Rights Watch report shows he spent more than 40 months in pretrial solitary confinement — 23 hours a day in a cell the size of a bathroom. Today he is serving a 17-year sentence in the Communication Management Unit at the federal prison in Terre Haute, Indiana, among the most extreme and isolating forms of incarceration on U.S. soil, reserved almost entirely for Muslims.

Sadequee’s family was shattered by her brother’s arrest, but they had no choice but to fight. With her sister, she became the family’s public voice, pouring her skills into advocating for her brother as he spent years awaiting trial. Her previous work had focused on combating sexual abuse. “That alone is already traumatic,” she said, since it means working with survivors. But now she had to put on an even stronger face to give speeches and interviews, knowing that many Americans viewed her with deep suspicion and hate. Many activist groups and fellow Muslims were either unwilling or afraid to advocate for her brother, fearful that they might become targets themselves. The ordeal took a toll. “I would wake up every single night at at 3 or 4 a.m.,” she said.

Sadequee eventually had to take time away from her activism. She began to learn healing practices to dislodge the trauma that had manifested itself inside her. Today, she is the founder of Sustainable Wellness, which offers yoga, meditation, and nutritional counseling, with a focus on trauma and movement building. “It’s not just about self-care,” she said. “It’s about collective care.” Even the largest and most diverse mobilizations will not be sustainable if organizers are emotionally and physically depleted, she said. “We burn out.” With her story an important reminder that the repression of Muslims has been ongoing under both Bush and Obama, Sadequee is recommitting to the activist fight, with new wisdom and perspective. In a rare personal Facebook post accompanied by the hashtag #SouthernPeoplesPower, she urged people to take further tangible steps beyond the airport protest, from donating money for legal fees to providing healing support to families.

“There are lots of other things that will be needed,” she wrote. “I hope everyone is plugged in. I hope that we are embracing our nervous systems for a massive turbulent rollercoaster ride.”

Top photo: Protestors demonstrate against a travel ban on Muslims at Atlanta’s Hartsfield-Jackson International Airport on Jan. 29, 2017.

The post Trump’s Muslim Ban Galvanizes Civil Rights Activists Across the American South appeared first on The Intercept.

Photographs of Cynthia Maria Hurd are displayed in the living room of the North Charleston home of her widower, Arthur Stephen Hurd, on Jan. 6, 2017.

Photo: Liliana Segura/The Intercept

I met Hurd on Friday, the third day of Roof’s sentencing trial, which ended today with a federal jury returning a punishment of death. Hurd had spent that day in court, hoping to take the stand as one of a long procession of government witnesses called to testify about their loved ones. But prosecutors chose three other people to talk about his wife instead. Each was powerful in their own way: Her brother Malcolm, a former lawmaker in North Carolina, said Cynthia was his “protector” growing up, the one who would see his report cards before their parents did. Her friend and fellow librarian Patrice Smith described how she had helped her through a miscarriage and a divorce, giving her a gift card for groceries when she was struggling to make ends meet. And in particularly emotional testimony, her younger sister, Jackie, described how she had discovered she had cancer after Cynthia urged her to get a mammogram. The diagnosis came just one month before the shooting. “I got you,” Cynthia had said.

Hurd, who goes by Steve, has stories too – more than 20 years’ worth. There is the one of how they met: He was driving down King Street when he saw Cynthia leaving the Human Services Commission, next to the library where she worked. “I told my brother he was gonna have to take the wheel because I was getting out of the car,” he says. He speaks low and soft, describing her with photographic precision. “She had a bag of Lays chips in her right hand, a can of Coca Cola in her left hand. She had on navy blue slacks, blue sling-back heels, a white French cuff shirt, her hair pulled back and tied with a blue bow.”

Cynthia turned him down multiple times, only to ask for his phone number when he came to the library one day. They went to see “Mrs. Doubtfire” on their first date. “Seemed like we were the only two people in that theater with a sense of humor,” he says.

Cynthia was ten years older than Hurd, yet they connected. “She had a degree in math and a masters in library science,” Hurd says. “I have a degree in physics, chemistry and math education.” On the stand earlier that day, Malcolm, her brother, had joked that she was a “nerd.” In Hurd, she found someone who spoke her language.

In this photo from June 20, 2015, Arthur Hurd tells the story of the first time he saw his wife, librarian Cynthia Hurd, while talking to reporters outside the historic Emanuel AME Church where she and eight others were shot to death in Charleston, S.C.

Photo: Chip Somodevilla/Getty Images

The couple dated for seven years before getting married in 2001. Hurd eventually went to work as a merchant seaman, where he was often deployed for months at a time. In November 2014, he left the country, boarding a ship as a refrigeration engineer off the coast of Oman. “When I got on board the system was all screwed up,” he says. “I rebuilt everything.” He had been scheduled to come back in May 2015, but the work was substantial – he extended his trip a little while longer. He was still overseas when Cynthia stopped by Mother Emanuel on June 17 to drop something off, deciding to stay for Bible study.

Hurd has replayed the events before and after Cynthia’s death again and again. He recites them like a script, rapidly and with meticulous detail. How he had made preparations for Cynthia’s upcoming birthday, ordering a pizza, chicken wings and a cake that said “Happy Birthday Boss Lady, Love Big Arthur,” for a party at the library. How he was tired and not planning to call her that night, but did it anyway – she demanded that he say “I love you” multiple times. How he woke up soaking wet from a nightmare, later finding no new emails from his wife. When his mother told him over the phone there had been a shooting at Mother Emanuel, he did not understand: Cynthia had told him she was only planning to pass by the church that night. “No, she stayed for Bible study,” his mother said. “What did you just say?” he asked. “She stayed for Bible study,” she answered.

Over the phone, a coroner at the scene described the clothing of one of the victims in the church who might be his wife, but could not confirm her identity – the woman was in a pool of blood and could not be moved. The outfit she wore sounded like Cynthia – black loafers, gray slacks, a white shirt – except for a lime green sweater he had never seen. Later, Hurd got in touch with her boss, who pulled up surveillance tape from that day. When Cynthia came into view, he described her outfit: “Black loafers, gray clacks, a white shirt and a lime green sweater.” It was then Hurd knew his wife was dead.

On the long journey home from the port city of Duqm, Oman, Hurd found himself watching CNN International, which aired a report from Roof’s bond hearing. “I listened to people say they forgave him right there on the spot,” Hurd said. “I can say this: Before my wife’s body hit the ground, she’d already forgiven him. Me? I haven’t.”

Yet Hurd does not need Roof to get the death penalty. “Cynthia wasn’t a big proponent of that,” he says. “Up until this point, I really was. Now, all I can say is, if they give him death, that’s the easy way out.”

Forgiveness became a loaded concept in the wake of the Charleston massacre. The prevailing media narrative – of an exemplary black community that remained peaceful and forgiving rather than falling prey to riots – was offensive for the assumptions it contained. Yet the dominant image was even invoked by Hillary Clinton during the presidential race. After violence broke out between protesters and Donald Trump supporters in Chicago last March, Clinton released a statement calling on Americans to be more like the grieving relatives of the Emanuel 9, who “melted hearts” with their forgiveness – the “model we strive for to overcome painful divisions in this country.” The response angered many as insensitive and tone-deaf, drawing a false equivalence between defenders of Trump’s racism and those who were protesting against it.

The forgiveness story also failed to capture the full spectrum of sentiment in Charleston, where there was no shortage of rage. Last November, local journalist Shani Gilchrist wrote a column for the Charleston City Paper, urging fellow writers to stop feeding a narrative that had spun “wildly out of control,” reminding readers that, at the famed bond hearing for Roof in 2015, there were only two family members who said they forgave Roof. “This forgiveness was personal, and the nation turned it into a blanket statement representing every victim’s family,” she wrote. On a deeper level, there was a sense that the model of forgiveness so praised and admired by white people allowed Americans to divest themselves of the task of dealing with the roots of the hate that animated Roof’s deadly actions. In Charleston, where the legacy of slavery is literally everywhere, tours still peddle an image of a “genteel, gracious Southern city,” Gilchrist wrote, substituting the word “servant” for “slave.”

In the months following the shooting, a PBS town hall was filmed at a different church downtown, titled America After Charleston and hosted by Gwen Ifill. “We have to tell the truth about this country,” said 75-year-old Emanuel parishioner Willi Glee, who was at the Bible study that night but left early. “We have to say that the country was founded as a racist, white supremacist society. And Dylann Roof is just a byproduct of that.” Malcolm Graham was also there, invoking his sister, Cynthia. “I have a forgiving spirit,” he said. But “I do not forgive.” As the audience applauded, he said, “It’s okay to be angry.”

In the meantime, Mother Emanuel had became something of a tourist mecca, with white visitors showing up for Sunday service while on vacation. Many wished to tell church leaders personally that Roof did not represent what was in their hearts. The New York Times published a photo of a white tourist from Ohio hugging Reverend Dr. Norvell Goff. The church still welcomes visitors with open arms. But it has also struggled with problems more pressing than attending to its new visitors. The Times noted a lawsuit filed by Steve Hurd accusing the church of being neither “transparent nor forthcoming” when it came to the donations that had poured into the church on behalf of the Emanuel 9, a charge he repeated in our interview.

A man stops to observe the makeshift memorial in front of Emanuel AME Church in downtown Charleston, S.C. on Jan. 4, 2017.

Photo: Logan Cyrus/AFP/Getty Images

On the Sunday before jurors would decide whether Roof will live or die, flowers and Christmas decorations adorned the base of Mother Emanuel, where a sign reads “We Thank You For Your Many Acts Of Kindness.” At the 9:30 service on January 8, a group of visiting white bishops hailed from Oregon, Texas, Pennsylvania and Delaware. Invited to introduce themselves, one man shared his commitment “to eradicate the scourges of racism.”

On the Prayer List in the program were the Emanuel 9, along with “survivors and all families of Mother Emanuel.” Following the Hymn of Praise, Reverend Edward Decree gave the invocation, offering thanks and praise to God, while offering prayers “for those who are in prison all over this land” as well as “those who are in prison in mind and in spirit.” In his rousing sermon, Rev. Eric S.C. Manning never mentioned the Roof trial explicitly, but acknowledged that for many, the week had been hard. He feverishly exhorted worshippers to draw strength from God’s devotion to them. “Simply put, He brought us this far. Together He shall never leave us. I know beyond a shadow of a doubt that He will continue to bring us through not only last week, but He will continue to bring us through this week. And this month and next year.”

“Don’t worry about how it’s going to turn out,” Rev. Manning urged, enjoining his parishioners to look to God for strength. “You may have been down, but you’re definitely not out.”

On the next morning, government prosecutors brought their last round of witnesses to speak about the youngest of Roof’s victims, 26-year-old Tywanza Sanders. Among them was his father, Tyrone. The previous week, I’d met a man who went to school with Tyrone Sanders, who said he was having a very hard time. “He’s not the one of the forgiving ones,” he said. On the stand, Sanders spoke haltingly about his son, describing how much he misses fishing with him, how they used to drive together to homecoming football games every October. Now, he said, he has no one to ride with.

The final witness was Felicia Sanders, Tywanza’s mother. She survived the massacre at Emanuel; jurors had previously heard her describe how she had seen Roof shoot her son to death after Tywanza said, “You don’t have to do this. We mean you no harm.” Laying still in her son’s blood while clutching her 11-year-old granddaughter, Felicia Sanders played dead – and both of them made it out alive. Sanders has said she will respect whatever decision is made about Roof’s fate, although reports have said she would have been fine with Roof’s offer to plead guilty in exchange for a sentence of life without parole. Her friend and attorney, Charleston lawyer Andy Savage, has been outspoken in his belief that Roof should get a life sentence rather than the death penalty. Yet Sanders made headlines after her testimony at trial, saying about Roof: “There’s no place on Earth for him except the pit of hell.”

Sanders took the stand while still wiping her eyes. Like witnesses before her, she shared poignant highlights of her son’s life; his love of the Teenage Mutant Ninja Turtles as a child, how he doted on his cousins as a young adult, wanting to escort one of them to his prom despite her protests. How he refused to leave her own side when she was being treated for cancer, forcing her to go on walks with him during her recovery because “a body at rest stays at rest.” She described a moped he used to ride, how she was so relieved when it got stolen. “I thought that was gonna be the life of him,” she said. “I was so afraid of him on that moped on I-26.” Instead, he died doing the very thing she had always taught her kids to do, to go to church, because the word Bible stood for Basic Instruction Before Leaving Earth. That was what her son and aunt were getting at Bible study that night. “I did not know that was gonna be the life of them,” Sanders said. “I didn’t know that. I didn’t know that.”

Over the Christmas break between the guilt phase and the sentencing trial, while others went home to see family, Hurd woke up in the middle of the night. His tradition with Cynthia was to get up at midnight and exchange two gifts, then go back to bed. But now he was alone, having momentarily forgotten that his wife is gone. “I’ve been home for a while now,” he says quietly. “And I’m so lonely. I go to the grave and I get a lawn chair and I sit for hours at a time. I would give all of my smarts, all of my talents, every dollar I have. My lungs, my kidneys, my heart. Just for a moment to hear her voice. Forty-five seconds to kiss her. Thirty seconds to hold her hand.”

One thing that keeps him going is a plan to start a charitable organization called Your Opportunity*, which would provide support to individuals “who want to do something with their lives.” He wants to help the kinds of people in whom his wife saw potential. “It doesn’t say you have to go to church, it doesn’t say you can’t have a felony record.” It will be a combination of financial aid and mentorship. “If you don’t have  GED,” for example, “we’re gonna get you through that.”

Dylann Storm Roof is escorted from the Cleveland County Courthouse in Shelby, N.C. on June 18, 2015.

Photo: Chuck Burton/AP

As Roof is sent to federal death row to face execution, Hurd will continue to work on forgiving him. “I know that I have to, because he is occupying space in my head that’s not necessary,” Hurd says. He compares the process to moving a grand piano up a flight of stairs. “Some days I make good progress. Some days, I stand still because I have to breathe. And some days, I fall back a few steps because it’s too damn heavy.” Hurd says he would feel satisfaction if Roof were to spend the rest of his days in prison, preferably in general population. “I refuse to hate him,” he says. “But I think of him with much disdain. How dare he decide who lives and who dies?”

Before I left his house that night, Hurd showed me a letter Cynthia wrote to him the month before her death. She had spoken to her husband on the phone earlier that day; in the letter, she wrote, “It’s obvious you’re feeling some kind of way….I know you are missing home and fishing so I thought I’d send some articles and current magazines to read. Hope you like them.”

“It’s funny,” she went on in the letter. Two days earlier, she had witnessed a potential domestic violence situation, yet on that day, she had married a couple with their six-month old son present. “Everyday is one of change and transition and happiness or sadness. No matter what, we must maintain hope and love. Tenacity (one of the characteristics I love about you) and commitment will get us through all that life has for us. Love will sustain us always.”

*Hurd has already selected the first round of Your Opportunity participants, who he wished to be recognized. They are: Darnell White, aspiring truck driver; Nancy Roses, aspiring hairdresser; Patricia Strong, aspiring caterer; Kevin Hutchinson, aspiring chef; Antoine Rouse, aspiring jail bondsman; and Aries Nelson, aspiring business owner.

Top photo: Rain falls as pallbearers exit Emanuel AME Church carrying the casket of Cynthia Hurd on June 27, 2015, in Charleston, S.C.

The post Will Dylann Roof’s Execution Bring Justice? Families of Victims Grapple With Forgiveness and Death appeared first on The Intercept.

Government Exhibit 753, in the trial of Dylann Roof, shows Reverend Clementa C. Pinckney, asleep on the couch with his daughters Eliana and Malana.

Photo: Jennifer Pinckney/Government Exhibit 753

Mrs. Pinckney was the first in a long line of witnesses called by federal prosecutors in the sentencing trial of Dylann Roof last week. The avowed white supremacist was convicted in December for gunning down Reverend Pinckney and eight parishioners during a Bible study at the historic Emanuel AME Church on June 17, 2015. The crime shook the country. President Obama gave a stirring eulogy at Rev. Pinckney’s televised memorial service, singing Amazing Grace. The next day, in a brazen act of civil disobedience, activist Bree Newsome scaled the flagpole at the state capitol to take down the Confederate flag; soon after, South Carolina Governor Nikki Haley signed legislation to remove the flag from the statehouse, in dedication to the Emanuel Nine. Across the country, Americans marveled at the expressions of forgiveness shown by grieving relatives who spoke at a bond hearing for Roof within days of the crime. But in Charleston, others remained torn, overwhelmed by grief and anger. A year and a half later, many struggle to define what justice would mean.

To the federal government, the answer is simple: “This defendant’s horrific act justifies the death penalty,” Assistant U.S. Attorney Nathan Williams said in his opening statement at the start of the sentencing trial on January 4. Roof, who confessed on tape soon after his arrest, had offered to plead guilty in exchange for a sentence of life without parole. But the Obama administration rejected the plea deal, pushing forward with a capital trial. There was no doubt about its outcome at the guilt stage. In the face of overwhelming evidence — and the defense’s concession that Roof was guilty — jurors swiftly convicted Roof on 33 federal counts. The verdict was announced on December 15. After a holiday break, the court reconvened in the new year to decide whether Roof will live or die. Williams assured the jury that the previous proceedings had barely scratched the surface. The coming days would show how Roof shattered the lives of countless friends and relatives, he said, telling jurors to expect tears. “What you will hear will be very hard to listen to,” he warned. If the guilt portion of the trial had been difficult, he said, the sentencing phase “will be worse. It will be heartbreaking.”

The trial has indeed been emotionally fraught. It has also proven legally challenging, raising concerns about due process: Roof insisted on representing himself during the penalty phase, over the strenuous objections of his court-appointed attorney, veteran death penalty lawyer David Bruck. On the eve of the sentencing trial — and following a weekend of psychological evaluations — US District Judge Richard Gergel found Roof competent to stand trial, for the second time since the case began. But he also issued an unusual order to restrict Roof’s movement within the courtroom, barring him from approaching witnesses. “What I don’t want is a spectacle,” Judge Gergel said Wednesday morning, before the jury was called in, making clear the order would necessarily apply to prosecutors too.

But if there was any fear that Roof might lash out or launch a racist monologue in court, he has instead maintained a stony silence, showing little discernible reaction to witness testimony. He stares straight ahead at the defense table, expressionless, barely responding to Bruck’s attempts at advice, which he remains authorized to give. Most significantly, Roof has not brought forth anything resembling a defense, refusing to present witnesses or mitigating evidence, thus sabotaging whatever chance he may have to save his own life. In the briefest of opening statements Wednesday, Roof showed no remorse, instead asking jurors to forget anything his attorneys might have previously said about his mental well-being. “There’s nothing wrong with me psychologically,” he said. Indeed, in the racist screed that has been labeled his “manifesto,” Roof has rejected psychology itself as “a Jewish invention” that “does nothing but invent diseases and tell people they have problems when they don’t.”

Roof’s psychological evaluations will remain sealed until after the verdict. But whatever his mental state, the 22-year-old high school dropout has cleared the path for prosecutors to send him to death row. In his opening statement, Williams set a chilling tone by revealing additional writings. The handwritten pages, discovered in his jail cell and written six weeks after the church massacre, are disturbing. “I want to make it crystal clear I do not regret what I did,” Roof writes. “I am not sorry.”

Dylann Roof appears at a bond hearing court in North Charleston, S.C., June 19, 2015.

Photo: Grace Beahm/The Post And Courier/Press Pool via AP

In a preview of evidence to come, Williams read portions of the writings out loud during his opening. “I have not shed a tear for the innocent people I killed,” he said. “I do feel sorry for the innocent white children forced to live in this sick country and I do feel sorry for the innocent white people that are killed daily at the hands of lower races.” Finally, he read, “I have shed a tear of self-pity for myself. I feel pity that I had to do what I did in the first place. I feel pity that I had to give up my life because of a situation that should never have existed.”

By the time Roof rose to give his opening statement, some on the victims’ side of the courtroom had heard enough. During the short break that followed, a group of black women stood huddled in the restroom. As others entered, one woman turned to ask, “Is he done?”

In early July 2016, after the Obama administration announced it would seek the death penalty against Roof, federal prosecutor Beth Drake wrote an open letter, posted on the Department of Justice website. It was addressed to “the Survivors and Victim Families of the Massacre at Mother Emanuel.” In her position as Acting U.S. Attorney for the District of South Carolina, Drake committed to represent them as best she could.

“Each of you is on a journey,” she wrote, “a journey where you are working through not only the horrific crimes that occurred on June 17, 2015, but also how you will live into the future without your loved ones. … As a part of your journey, you are called to navigate the state and federal judicial system.” This was critical in holding accountable the person who so grievously harmed them, she explained. “I am sure you know that the American people are on the side of justice, and are vested in a process at the state and federal level that is full and fair. Justice will be done.”

Drake’s letter followed the departure of her boss, U.S. Attorney William Nettles. Assigned to his post by President Obama in 2010, Nettles had gained a reputation for his non-traditional approach to punishment, particularly when it came to minor drug crimes. “I don’t view it as our job to put people in prison,” he told the Post and Courier in June 2016. “I viewed it as our job to make South Carolina a better place.”

South Carolina U.S. Attorney Bill Nettles, who has since retired, during a news conference at North Charleston City Hall in North Charleston, S.C.

Photo: Bruce Smith/AP

Nettles resigned from his position last June, just a few weeks after Attorney General Loretta Lynch announced that she would seek the death penalty against Roof. Nettles denies the timing had to do with the case. “I had a chance to make the case against the capital prosecution,” he said diplomatically. “I felt like I was able to provide a point of view that might have been lacking had I not been the United States Attorney. And I really appreciate the opportunity to express that point of view.” Now working as a defense attorney, Nettles writes occasional blog posts on his website. A recent entry is titled Why Defendants Should Not Represent Themselves in Their Own Criminal Case.

The DOJ’s insistence in seeking death against Roof has made for a strange — even unprecedented — scenario. State prosecutors may have been forced to step back when the DOJ brought forth its indictment, but they still plan to hold a capital trial of their own. If Drake’s open letter was an attempt to rationalize the two trials as necessary in the interest of justice, the situation has instead raised controversy and confusion. Whatever the political priorities of state and federal officials, it is not clear how the dual trials will serve the community they claim to represent. In Charleston, federal authorities will  move on after the verdict. But for family, friends, and residents, a state trial will mean starting all over again: A new set of jurors will hear grisly testimony. Witnesses will again take the stand to describe their trauma. And survivors and relatives will continue to see Roof’s face in court and on the news every day.

If it was painful to speak in the face of her husband’s killer, Jennifer Pinckney was not showing it. Animated and engaging, she shared vivid memories of Clementa: how they first met reluctantly at the behest of college friends; how she would not let him pay for her pizza on their first “mini date.” On their official first date, he showed up with a mini chess game and flowers; later, when he realized flowers made her sneeze, he would send her Edible Arrangements instead.

On that first night, she said, they went to Red Lobster, a restaurant that would become Malana’s favorite. Their youngest daughter was known for challenging her dad — “she put him in her place,” Clementa’s best friend later testified. In a story that filled the courtroom with laughter, Pinckney described how Malana, no older than six, once faced off with her father over dessert. In a disciplinary measure, Clementa had told his daughter that she could only have one Oreo cookie that night, fewer than normal. “No Daddy, I get three Oreo cookies,” she replied with steely determination, telling her sister to bring her the rest. It was one of a few moments in which Roof’s expression appeared to change, breaking into a grimace, almost resembling a smile. Other times, his face flushed red. But for the most part he remained stoic, staring straight ahead.

People hold hands as they join together to commemorate the lives lost in the shooting at the Emanuel African Methodist Episcopal Church on June 21, 2015 in Charleston, S.C.

Photo: Joe Raedle/Getty Images

Malana was with her mother at Mother Emanuel the night Roof murdered her father. In the most gripping part of her testimony, Pinckney described how they locked themselves in an office, hiding beneath a desk. She sharply ordered Malana to “shut up,” something she had never done. As the sound of the bullets got closer. Pinckney put her hand over Malana’s mouth. “I was like shhh shhh shh … and the next thing I knew, she put her hand over my mouth.” They were hiding like that when she heard the chimes above the church entrance, signaling Roof’s exit. Pinckney ran for her cell phone and dialed 911.

A recording of the 911 call was played in open court. It is harrowing. But by far the most difficult evidence over the days that followed was the pained testimony from witness after witness, describing the void left in their life after June 17, 2015. Among the most heartbreaking was Reverend Anthony Thompson, who brought the courtroom to tears with his emotional recollections of his beloved wife, Myra. He remembered how they had known each other as kids, then reconnected in college after she missed a bus to Charleston, where she went back every weekend to see her young son. The two-hour car rides became a weekly ritual; he came to admire her love of education and her devotion to family. On their wedding night, he said, she invited all her relatives to join them in their extra-large honeymoon suite, which did not entirely thrill him. Looking at a wedding photo submitted as evidence, he paused quietly, saying “wow,” as he looked at his wife.

Rev. Anthony Thompson, left, husband of victim Myra Thompson, wipes his face during a memorial in Charleston, S.C., June 17, 2016 on the anniversary of the killing of nine black parishioners at Mother Emanuel AME Church.

Photo: Chuck Burton/AP

By the start of the second day of the sentencing trial, Judge Gergel was forced to admonish prosecutors. With a list of 38 witnesses, the government’s case threatened to become overwhelming. “I’m concerned about preserving due process here,” he said, citing the length of their testimony. “I’m not trying to cut the soul out of the case,” he added. But “we need to do it more efficiently.”

The government began to move faster, cutting witnesses from its list. But the testimony was no less intense. One witness tearfully recalled a dream the night her mother died, in which she heard a voice coming from heaven saying her mommy was gone. “I knew that was my mom telling me something had happened,” she said. Another witness broke down completely as she recalled the moment she found out her sister had been killed. She could not bring herself to believe it — “I even tried calling her number,” she said, sobbing inconsolably, forcing the court to take a break. A prosecutor approached to console her, leading to objections by Roof, sustained by Judge Gergel.

Eventually, David Bruck broke his silence, standing to speak outside the presence of the jury. Since the very first witness, he had done everything he could to advise his former client of his rights, only to be repeatedly rebuffed. The resulting proceedings were violating “every principle restraining victim impact statements under the 8th Amendment,” he argued indignantly. “It is happening because this man cannot protect his own rights.” Bruck urged the court to reappoint him to defend Roof, or call a mistrial. “This is his sentencing, it is not a memorial service,” he said.

Bruck’s request was denied. “I did everything I could to persuade Mr. Roof not to represent himself,” Judge Gergel said. With indignation of his own, Assistant U.S. Attorney Jay Richardson reminded the court, “He’s the one who chose to kill nine people — and he chose to do it to particularly good people.”

By Friday afternoon, nearly all relatives and loved ones had taken the stand, with many more tears shed inside and outside the courtroom. In a break, prosecutors brought law enforcement officials to discuss Roof’s continued devotion to white nationalism. Among the revelations: The screen name “Lil Aryan,” used by Roof to comment on a white supremacist website; his belief that Adolf Hitler will be canonized as a saint; an odd list of films he likes, including “The Notebook” and “12 Years a Slave,” the latter being “anti-white,” in his view, but nonetheless valuable since “the cinematography is beautiful.”

Prosecutors ended the week with testimony about Roof’s oldest victim, 87-year-old Susie Jackson. Jurors had previously heard how he emptied an entire magazine of bullets into her elderly body. The juxtaposition was clear: If Roof is hatred personified, Jackson was the opposite, a great-grandmother, the oldest of 10 kids, and beloved matriarch of her family. On the stand, her son estimated she had some 200 nieces and nephews, who she welcomed at the house unconditionally. “‘No’wasn’t in her vocabulary,” her eldest grandson, Walter Jackson Jr, testified. He recalled how she chartered a bus for his wedding and shared a poem he had written for her 70th birthday celebration, a surprise party held at Mother Emanuel.

“It’s tough to love on everybody,” Jackson said as his testimony came to a close. “But she loved on everybody.”

Top photo: Pallbearers release doves over the casket of Ethel Lance during her burial service, June 25, 2015, in Charleston, S.C. Lance was one of the nine people killed in the shooting at Emanuel AME Church in Charleston.

The post As Families In Charleston Share Stories and Pain, Dylann Roof Shows No Remorse appeared first on The Intercept.

The president certainly deserves credit for making clemency a priority before leaving office. His efforts are especially laudable in contrast to the lazy rhetoric of President-elect Donald Trump, who has cluelessly condemned clemency recipients as “bad dudes.” In reality, to use language Trump might understand, all successful applicants go through a process of extreme vetting: only a fraction of people in federal prison are eligible in the first place, and selections rely on a careful review of each candidate’s history and behavior behind bars. A record of violence, including as a juvenile, is disqualifying.

Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.” Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse. Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”

With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best. As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications. On the Department of Justice website, which tracks the rejections, the staggering list of names includes Ferrell Scott, whose application was denied on November 29. Scott is serving life without parole for pot offenses — precisely the kind of draconian sentence clemency exists to address.

Obama’s clemency project was ostensibly born of the recognition that, as then-Attorney General Eric Holder put it in 2013, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” At the time, Holder promised the Obama administration was “fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.” But when it comes to the president’s pardon power — the one place where Obama could directly address the problem —  there are few signs of a transformation.

Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary. If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars. As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met. To give a list of names would exclude too many people.”

On November 29, a coalition of activists, legal scholars, and attorneys published a letter urging Obama to take much bolder action, to commute the sentences of whole categories of people whose prison terms are plainly unjust. He could, for instance, prioritize the cases of people who should have received retroactive relief under the Fair Sentencing Act in 2010, which reduced (but did not abolish) the obscene sentencing disparities for crimes involving crack versus powder cocaine. “There is bipartisan agreement that pre-Fair Sentencing Act crack sentences are unjust and have disproportionately affected people of color,” the authors wrote, “but there is no mechanism for addressing that injustice outside of clemency.” Whether Obama will act on such ideas remains to be seen. But the letter exposed the fallacy of framing clemency as a “second chance” to be bestowed upon a small number of “deserving” individuals. If the underlying sentences were senseless and cruel to begin with — and if clemency is the only way to grant relief — why has the White House made it so hard for these same people to get out of prison?

This is just one of a nagging set of larger questions highlighted by Obama’s clemency initiative. In an era in which so many politicians now recognize the need to correct the excesses of mass incarceration, why should the burden fall on incarcerated people? How is it reasonable to require people in prison — the most disempowered individuals in society, living in state-imposed environments of extreme violence — not only to survive but to excel in order to win relief from a punishment the government itself has admitted was wrong? Should someone serving a draconian sentence under a racist sentencing scheme really have to work so hard to prove their worth when it was the state that robbed them of their humanity?

A prisoner’s bunk at the Veterans Unit of the Cybulski Rehabilitation Center on May 3, 2016, in Enfield, Connecticut.

Photo: John Moore/Getty Images

A Nation of Second Chances?

On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed. The stories are all too familiar. They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes. They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime. People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.

As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with. What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”

One bright spot of Obama’s clemency initiative has been in these very kinds of success stories – publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows.

Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act. Passed in 1985, the law aimed to give judges discretion in handling cases involving young defendants  — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record. The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail. Exhibit A was a black man in his early 20s facing trial for rape, and whose record included eight previous arrests and stints in state custody dating back to his teens. “There’s simply no indication here that Mr. Pitt is amenable to rehabilitation,” a judge told the man’s defense attorney at one point, and the Post would seem to agree.

The series included two large mugshots of the young man in question. Yet absent from the series were figures to contextualize the cases highlighted by the Post, making it impossible to measure the law’s failures against its successes. Indeed, while the YRA may well be flawed in its implementation, the man profiled by the Post could just as easily be considered a poster child for the utter inability of the criminal justice system to address pervasive problems such as mental illness, poverty, and neglect — the very factors so common among youth who cycle in and out of prison. Although the Post noted that the man “began psychiatric treatment at age 13,” the portrait that emerges is of a predator coddled by the courts, free to victimize his community because of an overly lenient justice system.

Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”

The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited. But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.

But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice. And the state has not even begun to account for its own mistakes.

Top photo: Barack Obama, then a U.S. senator from Illinois, looks out the window of Nelson Mandela’s jail cell, August 20, 2006, on Robben Island, South Africa.

The post Obama’s Clemency Problem – And Ours appeared first on The Intercept.

Tens of thousands of people convicted of nonviolent federal drug crimes have sought mercy under the program, which was announced in April 2014. Obama ramped up his commutations in advance of the election, and Williams prayed with each clemency announcement that her brother’s name might be on the list. After the last round came out, on November 4, Williams was forced to hope that if Obama didn’t grant her brother clemency, perhaps his successor might.

But the chances of that almost certainly dissolved on election night. Trump has called the clemency recipients “bad dudes,” warning one audience this summer that “they’re walking the streets. Sleep tight, folks.” After winning the White House on such fearmongering rhetoric — and promptly naming a white supremacist to his cabinet — Trump chose Alabama Sen. Jeff Sessions as his attorney general, an opponent of criminal justice reform and defender of mandatory minimums. There is little reason to believe President Trump will show mercy to people like Barren.

Yet Williams remains steadfast in her belief that her brother will come home. “We are a family of very strong faith,” she said. Besides, her fight does not end with his freedom. There are too many others in his position. “We have to continue making sure people care.”

Williams spoke over the phone from Washington, D.C., where she had traveled from Pittsburgh for a series of public events under the theme “Hope for the Holidays.” The advocacy group #cut50, which aims to slash the incarcerated population in half, had organized the series, where participants urged Obama to commute as many sentences as possible in the remaining weeks of his presidency.

Clemency applicants have long understood that the end of Obama’s second term would be a race against time. But with Trump headed for the White House, it has become an emergency. “I do think that this administration has to pull out all the stops to ensure that every single prisoner who is deemed to meet the criteria is considered and granted clemency,” said Mary Price, general counsel at Families Against Mandatory Minimums.

In Washington, Williams joined other relatives with incarcerated loved ones, as well as people whose sentences had been commuted under Obama’s clemency initiative. At a candlelight vigil at the While House on Monday, Williams stood alongside Barren’s partner, Anrica Caldwell, who recently wrote about his case for The Influence, a website that has published powerful profiles of people seeking clemency. In her piece, Caldwell described how it felt to get her hopes up with every round of commutations. “At these moments I often ask myself, ‘Will he become that lucky person to come home, or will I have to visit him in prison until the day he dies?’” For both Williams and Caldwell, being around others in the same position was a reminder that they were not alone. “It was a rough week for me,” Williams said. “It brought back that hope.”

There has been much to criticize about Obama’s clemency effort — from its late start to the paltry number of commutations to date, to the strict conditions it places on those seeking freedom. The White House boasts that Obama has commuted more sentences than the 11 previous presidents combined, yet as of November 6, the number of successful clemency petitions stood at just 944. By contrast, 13,885 petitions have been denied, a rejection rate of well over 90 percent. In October, a man in federal prison declined to accept Obama’s clemency offer, reportedly because of the requirement that he enter a drug treatment program, a stipulation that reformers have criticized. What’s more, in the scheme of our vast national prison landscape, the impact of Obama’s clemency initiative can look pitiful. Federal prisons hold a small fraction of all people behind bars in the United States. Even if the president were to commute every federal sentence in the country, this would put hardly a dent in mass incarceration.

Yet the clemency initiative offers one of very few means for Obama to preserve some shred of his legacy on criminal justice reform. Although his accomplishments in this area have been relatively modest, he was the first sitting president ever to visit a prison — an act that sent a powerful, overdue message to incarcerated people and their families. Under Obama, the Department of Justice has worked with formerly incarcerated leaders to help design programs to expand prison education and address needs of children with incarcerated parents. With a Trump presidency likely to crush such achievements, an aggressive clemency push by Obama could have lasting impact.

“We’ve been working furiously for months now as we saw the end of the administration nearing — there’s a countdown clock on our website,” says Cynthia Roseberry, the project director of Clemency Project 2014, which has processed thousands of applications to date. Although Roseberry is well aware that the number of successful petitions under Obama could have been higher, the figures don’t tell the whole story. “At the end of the day,” Roseberry says, “we did reunite some families. And for some families it meant having somebody home who they thought was going to die in prison.”

Barren’s family is still hoping for this outcome. When he went to prison, “David was a single father raising three boys,” says Williams. He has three daughters, too, and grandparents in their 80s who visit him almost every weekend. The constellation of relatives is a reminder of the effect even one commutation can have. Clemency for Barren would bring relief not just to him, but to a small universe of people.

On November 15, as the press speculated about Trump’s pick for attorney general, a crowd of people gathered outside the Department of Justice. It was the morning after the White House vigil, and activists with #cut50 had organized a press conference urging the president to accelerate his clemency grants. Standing behind stacks of boxes filled with petitions, Van Jones, the group’s co-founder, announced that more than 2 million people had contributed signatures calling on Obama to send people home for the holidays. A young woman pleaded on behalf of her father in prison, “Please Mr. President, if you can, be bold and grant clemency to all of our families and to us, because we are also serving these life sentences with our parents.”

Standing with the crowd was Reynolds Wintersmith, who once faced the prospect of dying in prison for nonviolent drug crimes he committed when he was only 19. The Chicago Tribune described how in 2014, after two decades behind bars, Wintersmith heard his name over the loudspeaker at the Pekin Federal Correctional Institution in Illinois. He discovered shortly afterward that he was going home. “At that moment,” he told me over the phone, “I could shrug like Atlas never did.”

Wintersmith was not focusing on the election results. For one thing, he was unable to vote: “I’m a convicted felon on supervised release,” he said. But more importantly, he sees the current moment as an opportunity to “redefine what needs to be done.” He wants to organize more clemency recipients like himself — the “experts of experience,” as he put it — to get involved in the issue. And he wants to push for broadening the public imagination of what is possible.

He told me about an exchange he had with former Department of Justice Pardon Attorney Deborah Leff. In a meeting with clemency recipients last year, she asked for names of applicants whom they felt deserved clemency too. “Everybody had their long list of names,” Wintersmith recalled. But he didn’t. Later she called on him. “She said, ‘You’ve been really quiet. Do you have anything to say?’ I said, ‘I have a lot to say. I have a list of names of people I would like to see come home. But there are even more people who I’ve never met. To give a list of names would exclude too many people.’”

Over email, Leff declined to discuss the clemency process at Justice. But earlier this year, she sent a resignation letter to her boss, Deputy Attorney General Sally Yates, that stands as a grim indictment of the administration’s priorities in carrying out the initiative. Without enough attorneys and staff to review the nearly 10,000 clemency petitions on her desk, Leff wrote, “the requests of thousands of petitioners seeking justice will go unheard.”

Some of the practical challenges that have slowed the clemency initiative are actually the product of the program’s rigidly limited scope: The more conditions placed on clemency requests, for instance, the more work it takes to ensure that an applicant is eligible. Roseberry pointed out that it took a long time for the DOJ to announce the criteria for its clemency initiative. Then it turned out that the bar was set very high. Not only were petitions limited to “nonviolent, low-level offenders,” but applicants had to have “no history of violence” — even as juveniles. Attorneys tasked with vetting these requests, said Roseberry, often have to dig up files that are decades old and not necessarily available electronically. “You’re talking about 20- to 30-year-old records.”

On the morning after the press conference in front of the DOJ, Veda Ajamu was at a Hilton Garden Inn in D.C., preparing for a meeting with her local congressman, Rep. Steve Cohen of Memphis. She had traveled from Tennessee on behalf of her younger brother, Robert Shipp, who was sentenced to life without parole on cocaine charges in 1994, when he was in his early 20s. Today he is 44 and living in a medium-security penitentiary in Illinois.

Shipp had no previous criminal record when he got involved in a drug conspiracy in Chicago over the course of five months. As Ajamu writes in a Change.org petition, the judge in his case “repeatedly verbalized his objections to the sentence that he was forced to give Robert,” explaining that his hands were bound by federal guidelines that prevented him from exercising discretion. In a pleading letter to the White House on November 6, Shipp himself noted that this same judge had submitted a letter in support of his clemency petition. While he took responsibility for his actions, he wrote that he was not the same person he was in his 20s. Today, he has completed dozens of courses, recently finishing a yearlong training in Microsoft Business Office: “I am proud to share that I successfully completed this college program with a 4.0 GPA,” he wrote. With a daughter as well as nieces and nephews, he reflected, “I realize now that even more than myself, it is my beautiful and loving family who have been greatly harmed by these 23 years of my incarceration.”

Ajamu was emotional when she described how her brother’s imprisonment had hurt her family, especially her father, who begged her before he died to keep fighting for Shipp, whom the family calls Buster or “Bus.” The vigil and press conference were “wonderful,” she said. “I was able to release, I was able to be around so many other families and I was able to draw strength from that.” As her brother’s primary advocate, she feels enormous pressure to do everything she can to help him. “I wake up with this,” she said. “I go to bed with this. I dream of this.”

Fighting for her brother has brought Ajamu closer to him — he calls her his “twin” and his “lifeline.” During visits, they take pictures in their “signature pose,” with their backs toward one another. “It means is we always have each other’s back,” Ajamu explained.

Shipp was 16 years old when another sibling, his older brother, was stabbed to death in Chicago after intervening in a fight. “It sent him into a tailspin,” Ajamu recalled. “He wasn’t able to cope with everything that was going on.” He was arrested a few years later. In the meantime, their brother’s murderer was caught and sentenced to 20 years, ultimately serving just half that time. It is “unbelievable,” Ajamu wrote in her Change.org petition, that their brother’s murderer was free while Shipp had been sent to die in prison for a nonviolent crime.

In 2015, a change in the U.S. Sentencing Guidelines reduced Shipp’s sentence retroactively to 30 years — a ray of hope. But Ajamu hasn’t slowed down, and she won’t be discouraged by a Trump presidency. “The sense of urgency didn’t just start after the election,” she said. For her, the real urgency is defined not by political circumstances but by the lives of the people around her — people who may not be around to see Shipp come home, even with his shortened sentence. Besides, she said, perhaps even President Trump could be persuaded to grant clemency if he heard from people like her. “Mr. Trump, he’s a father. And he’s human,” she says. “Some may say he doesn’t have a heart. But I’ve got to believe if he heard the stories — if he sat down and talked to these people — I think he would empathize with us.”

With little to lose politically as he prepares to leave office, Obama can be urged to act as boldly as possible. But even if he doesn’t push more clemencies through, families will continue to fight on their own, as they always have. As Anrica Caldwell put it, “Sometimes you want to scream and say, ‘Oh my god, this is not gonna happen.’ But then you take a deep breath and you get back on the horse — and you start galloping.”

The post Clemency Applicants Urge Obama to Act Before Trump Presidency Crushes Hope appeared first on The Intercept.

It’s hard to imagine a place more heavily monitored than California’s death row, where isolation, strip-searches, and suicide watch are a fact of life. Yet CDCR counts 25 suicides among the condemned since 1978, the year a ballot initiative dramatically expanded the crimes punishable by execution in California. With the same people responsible for that initiative now campaigning against the death penalty, no one had more at stake in their success on Election Day than the nearly 750 people facing execution in California.

The outcome was as bad as they feared. Prop 62 failed, with Yes votes reaching just 46.1 percent, versus 53.9 percent voting No. Meanwhile, the pro-death penalty Prop 66 got barely enough support to pass, 50.9-49.1. The razor thin margin technically means that Prop 66 remains a “close contest,” as designated by the California secretary of state; the outcome could change as provisional and vote-by-mail ballots are tallied. But the votes required make the prospect unlikely. A spokesperson for the secretary of state declined to discuss it. “We will certify the election results on December 16,” he said on Wednesday.

Anti-death penalty activists conceded defeat on Wednesday, reiterating the flawed provisions of Prop 66. “Poorly written initiatives often end up mired in costly and protracted litigation in California,” wrote ACLU lawyer Ana Zamora, who led the No on 66 campaign. In fact, multiple legal challenges have already been filed to block the measure. A lawsuit brought Wednesday by former California Attorney General John Van de Kamp and Ron Briggs — whose father led the fight to pass the state’s 1978 death penalty law — called on the California Supreme Court to nullify Prop 66, arguing that it “illegally interferes with the jurisdiction of California’s state courts,” while undermining the habeas rights of the condemned. Indeed, as many have long argued about Prop 66, for all its promises to speed up the death penalty, it is unlikely to lead to executions anytime soon. With its myriad, confusing provisions, the initiative will face lawsuits for months and even years. In its post-Election Day email, the Yes on 62 campaign assured supporters that Prop 66 “presents constitutional and practical questions that make its implementation uncertain.”

Grim Results in Nebraska and Oklahoma

The vote in California was a harsh blow for anti-death penalty activists, the second time in four years they have failed to pass a ballot measure to abolish capital punishment. Prop 62 fared worse, in fact, than Prop 34, a similar measure defeated in 2012. As polls suggested, it is possible some Californians voted for both Prop 62 and Prop 66, either out of confusion or to express a common sentiment: that the dormant, costly death penalty must be fixed or abolished. Yet California was not the only state to vote in favor of the death penalty on Election Day. Even as the country moves steadily away from capital punishment year after year — with executions and new death sentences consistently dropping — two other states had the issue on the ballot on Election Day — and in both of those states, death won.

In Nebraska, thanks to the deep pockets of its pro-death penalty governor, voters overturned a historic ban on capital punishment – a painful defeat for activists, legislators, and relatives of murder victims who fought hard to pass the legislation just last year. The law marked a significant victory for abolitionists in the deep red state, surviving a veto by Gov. Pete Ricketts. Indeed, it would likely have remained intact were it not for Ricketts: No sooner did the law pass than the governor immediately poured his own money into a ballot initiative to overturn the abolition law. With capital punishment consistently enjoying popular support even in non-death penalty states, it came as little surprise that Nebraskans would take the chance to bring it back. The breakdown in the end: 59.6 in favor of repealing the abolition law.

Less high-stakes — if somewhat more mind-boggling — was a measure that passed in Oklahoma, a state that has become synonymous with death penalty dysfunction in recent years. Despite flimsy convictions, botched executions, and shocking levels of incompetence and deceit among officials carrying out capital punishment, Oklahomans still overwhelmingly passed State Question 776, which enshrines the death penalty in their state constitution. The new amendment explicitly states that, regardless of execution method, the death penalty itself “shall not be deemed to be or constitute the infliction of cruel or unusual punishment” in Oklahoma. The practical reach of such language is limited, since it has no power where federal courts are concerned. In fact, the Tulsa World, whose editorial board pushed the execution of the likely innocent Richard Glossip, called on voters to reject the measure, calling it a “dang right!” proposition that merely reiterated powers state lawmakers already have. Nevertheless, voters eagerly passed SQ 776.

As in California, the measures in Nebraska and Oklahoma do not necessarily mean an imminent return to executions. Both states have notoriously struggled to find execution drugs, a problem that persists nationwide. Still, the pro-death penalty votes on Election Day were incomprehensible to Crystal Martinez, who lives in Modesto, California, and who calls Richard Glossip a friend. Martinez was at the Oklahoma State Penitentiary last year, ready to witness his execution, when he received his 11-hour stay upon the discovery that the state had the wrong drugs on hand. More recently, Martinez campaigned for abolition at home. “I was really optimistic for Prop 62 to abolish the death penalty in California,” she said, “but as long as Prop 66 failed, I would have considered it a victory. For people to vote to not only to keep but to streamline the death penalty — I never expected that in California.” The continued appetite for executions in Oklahoma struck her as disturbing too, having been so close to a case that embodies the death penalty’s most dangerous flaws. “Richard represents Oklahoma’s death penalty now,” she said. “It is absolutely shocking that anybody is voting in favor of it.”

A Few Bright Spots

It may seem fitting that the same election that delivered a demagogue to the White House would be marked by enthusiasm for executions. As the controversy over the Central Park Five reminded us, Trump’s law-and-order rhetoric exploited the same racist fears that have kept the death penalty alive for generations. Yet the ballot results favoring capital punishment stood in sharp contrast to a slew of different victories for criminal justice reform – including in some of the same states that upheld the death penalty. In California, for example, voters decriminalized marijuana – one of several successful initiatives to relax policies around pot – while also passing Proposition 57 by a wide margin – a big victory for parole reform as well as for juvenile defendants. More jarring still, Oklahoma voters passed a measure to reduce several low-level felonies to misdemeanors, while also voting to use the money saved by the state as a result to fund drug and mental health treatment. Several other states across the country saw much good news for criminal justice reform.

There are a number of potential explanations for why abolition might have failed where other reforms succeeded. In the broad realm of criminal justice policy, Americans’ feelings on the issue are uniquely emotional and complex. Yet while November 8 was certainly a good day for the death penalty, there was not a total disconnect between the reforms that passed and the stubborn support for executions in California, Nebraska, and Oklahoma. Election Day saw a wave of critical victories among prosecutors who promised reform – a trend that should make abolitionists optimistic. In Texas, Harris County District Attorney Devon Anderson lost re-election to such a candidate – the first Democrat to be elected DA in almost 40 years. As my colleague Jordan Smith points out, Anderson attracted controversy for conduct in some high-profile capital cases: “She refused to grant a new punishment hearing to Duane Buck, whose death penalty trial was tainted by racially biased testimony, and declined to do anything to address prosecutorial misconduct in the wrongful conviction of another death penalty defendant.”

There were similar results in other jurisdictions – and not just on Election Day. In Jacksonville, Florida, notorious DA Angela Corey was ousted in the primary, having been widely criticized for such callous actions as insisting on seeking a death sentence in a case where victims’ relatives adamantly opposed it. Writing on his Twitter account, Death Penalty Information Center Executive Director Robert Dunhum cited several other Election Day races in which prosecutors were “perceived as too aggressively pursuing the death penalty.”

As ballots continued to be counted in California on Friday, death row remained under watch by nurses and counselors. Although the CDCR’s Thornton reported no reported incidents on death row following the victory of Prop 66, she said there was “an increased presence of mental health staff,” which would continue through the weekend. As for the new tasks demanded by Prop 66 – including possibly transferring people from death row to other state facilities – Thornton said no changes are underway as of yet. “If it is certified as being passed, the department will comply with the requirements,” she said.

Whatever the future of the death penalty in California, for now it is alive, if not well. On January 17 — just days before Donald Trump’s inauguration — the state will mark its 11th year without an execution. With the legal fight over Prop 66 bound to last a long time, California’s death row population will remain old and infirm, an increasingly accurate picture of what one judge has re-labeled capital punishment in California: “Life in prison, with the remote possibility of death.”

Top photo: A guard stands watch over the east block of death row at San Quentin State Prison on Aug. 16, 2016, in San Quentin, California.

The post The Death Penalty Won Big on Election Day, But the Devil Is In the Details appeared first on The Intercept.

But the next day, a feeling of letdown began to sink in. “I was supposed to wake up in the morning with this newfound freedom,” Wilson said. “And I didn’t. And I kept waiting and waiting and waiting. And it never came.” Wilson had pushed for the death penalty, although she understood Ramirez wouldn’t be executed anytime soon. “Everybody in California knows that when you get on death row you’re more likely to die of old age,” she said. “Everyone knows that. That really wasn’t the issue.” The sentence was supposed to be the thing that healed her. “It was supposed to be my justice.” Instead, she felt lost and angry.

“That’s when my whole worldview started to unravel,” Wilson said. More than vengeance, she realized she wanted answers. She wanted to know why people do such harm to others. And she needed desperately for something positive to come from her loss.

Wilson embarked on an “investigative journey,” exploring Buddhism and studying forgiveness. Then, on the fifth anniversary of her husband’s death, she sat down to finish a letter she had started many times. “Dear Irving,” she wrote. “I thought that this day should be the one that I put all my fears and expectations aside and just keep writing so I can tell you a few things.” Wilson told Ramirez that she did not hate him anymore. She had despised him for a long time, but now that hatred was hurting her more than it could ever hurt him. So she forgave him. “I’m pretty confident that you didn’t envision your life turning out this way,” she wrote. And then she told Ramirez she was sorry: “I deeply regret my part in making people see you as less than human.”

Wilson tracked down Ramirez’s attorney, who was stunned — she had never seen such a thing in all her years representing people on death row. A different lawyer later helped Wilson arrange a visit to the women’s prison in Chowchilla. The experience was life altering, awakening her to the abuse, neglect, and trauma so common among people behind bars. Today, Wilson is a full-time criminal justice reformer, practicing restorative justice and continuing her prison visits. Although it’s a life she never imagined, it is also the positive outcome she craved: a chance to disrupt cycles of violence by helping others address their own trauma. “I want to heal that,” she says. “Before people twist off and kill someone’s husband, their brother, their son.”

Ramirez never wrote back to Wilson — his lawyers likely cautioned against it. But curled up on her couch in mid-September, alongside her two dogs, she spoke about him with compassion. She feels particular empathy for his mother, who had brought him as a child from El Salvador to escape civil war. Wilson never looked her way during the trial, she was so focused on Ramirez. But now, with an adult son of her own, she imagines how much his mother must suffer at the fear of her child being killed by the state. “She has already lost Irving to death row,” she said. “For her pain to be magnified in my name — I can’t live with that.”

The Yes on 62 campaign has amplified these voices as Election Day approaches. Last week, it released two ads. One features Wilson; the other features Beth Webb, whose sister, Laura, was killed in a 2011 massacre at a hair salon in Seal Beach, by a man named Scott Dekraai. Webb’s grief has been compounded by frustration over an unfolding scandal within the Orange County District Attorney’s Office, involving the sweeping misuse of jailhouse informants. The misconduct has made national headlines, derailing the Dekraai case and dragging out Webb’s ordeal. “I’ve already had to face him in court almost 50 times,” Webb says about her sister’s killer in the Prop 62 ad. For abolitionists, who often point to the burdens represented by long capital cases, the snitch scandal in Orange County is a reminder of the error and corruption that make death sentences not worth the risk.

Convincing voters won’t be easy. Polls still show wide support for the death penalty in California — a survey in September found 51 percent of voters opposed to Prop 62, 40 percent in favor, and 9 percent undecided. In fact, it was just four years ago that voters rejected a different abolitionist measure, Proposition 34, or the Savings, Accountability, and Full Enforcement for California (SAFE) Act. Spearheaded by Death Penalty Focus — whose longtime director, Mike Farrell, is the official proponent behind Prop 62 — the 2012 initiative was tailored largely to conservatives, emphasizing that people on death row would have to work to pay restitution to victims after their sentences were commuted, while providing tens of millions of dollars for police and prosecutors to “get more murderers and rapists off the streets.” The SAFE Act was defeated by a narrow margin: 52-48.

Abolitionists are hopeful that the landscape has shifted enough in California to reverse the narrow margin that defeated the SAFE Act, turning it in their favor. But this time, they face a new barrier, a pro-death penalty ballot measure that was not a factor in 2012. Proposition 66 — or the Death Penalty Reform and Savings Act — seeks to preserve capital punishment and restart executions by revamping the system from top to bottom. At the heart of the measure, backed by prosecutors, police, and prison guard unions, is a vow to deliver on California’s unkept promise of closure for victims, by slashing the long delays between a killer’s conviction and death. The campaign has rolled out emotionally charged videos of its own: In one recent ad, a woman named Sandra Friend holds up a framed photograph of her 8-year-old son, Michael, who suffered a torturous sexual assault and murder after being abducted on his way home from school in 1996. “I am living a parent’s worst nightmare,” she says, urging voters to vote “yes” on the measure.

But critics accuse Prop 66 of peddling false promises, describing it as a poorly written measure that would create a whole new set of problems, including raising the risk of executing innocent people. Indeed, while the text can be hard to understand, it was clearly designed with finality rather than fairness in mind — opponents are not wrong to warn that it would make California “more like Texas.” Under Prop 66, post-conviction proceedings would be moved from the backlogged California Supreme Court to the same trial courts that handed down the death sentence in the first place. These courts, whose judges and clerks have never reviewed capital habeas appeals in California, would be tasked with swiftly appointing lawyers to handle habeas petitions (a process that currently takes years), in part by expanding the pool of available attorneys to include those who do not usually represent people on death row. Lawyers would face a one-year deadline to investigate and file habeas petitions — currently they have three years — except where there is “a substantial claim of actual innocence,” in which case they would get two years, tops.

Elsewhere amid the myriad provisions in Prop 66 is language that comes from an unlikely place: “Some of it was taken straight out of Prop 34,” one co-author told me, smiling at the irony. The SAFE Act’s work and restitution requirement, for example, was written into Prop 66 almost verbatim, except that it would apply to people on death row. Awkwardly, Prop 62 contains the same provision carried over from Prop. 34, the only other difference being the percentage of prison wages going to restitution: Prop 62 would allocate 60 percent; Prop 66 promises 70 percent.

Indeed, with their shared public safety frame, Prop 62 and Prop 66 can look disconcertingly similar at first glance. The title for the former — “Justice That Works Act” — could easily apply to the latter, which promises to “Mend, Not End the Death Penalty.” Polls suggest voters may actually be confused about the two measures; a Capitol Weekly survey in late October found that while 92 percent of voters who identify as anti-death penalty say they plan to vote for Prop 62, “40 percent of those same anti-death penalty voters are casting ballots for Proposition 66.” Californians could conceivably vote “yes” on both. If both measures pass, the one with the most “yes” votes wins.

To attack Prop 66 head-on, activists have launched a third campaign: No on 66. Led by many of the same advocates behind Prop 34, it is nonetheless separate from Yes on 62, with its own communication operations, endorsements, and events. The week I was in California, a press conference at the Los Angeles ACLU offices featured Barry Scheck of the Innocence Project, California exoneree Shujaa Graham, and relatives of Cameron Todd Willingham, who warned voters about the risk of wrongful executions. Days later, a separate event held by Yes on 62 featured 17 death row exonerees from across the country.

Although No on 66 works effectively in tandem with Prop 62, the separate campaigns also reveal fissures within the anti-death penalty movement. Some activists I spoke to have chosen to vocally support No on 66 while holding back on Prop 62. The tension dates partly back to the Prop 34 campaign; abolitionist critics pushed back against the SAFE Act’s conservative framework and law-and-order provisions. An activist whose husband is on death row at San Quentin pointed out at the time that people serving life without parole already pay restitution to victims while earning as little as 15 cents an hour — “One might title this initiative, ‘End the death penalty and replace it with slavery.’” In a growing debate beyond just California, others warned against embracing life without parole as the default alternative to executions, with Texas death penalty lawyer David Dow arguing that the sentence “denies the possibility of redemption every bit as much as strapping a murderer to the gurney and filling him with poison.” Particularly sobering was a survey conducted by the Campaign to End the Death Penalty, which sent questionnaires to 200 people on California’s death row in advance of the 2012 election. Of 50 who replied, 47 opposed the SAFE Act, even though its passage would mean they no longer faced execution. Central among their concerns was the automatic loss of their state assigned post-conviction attorneys, which would be a devastating blow to habeas appeals, especially for those with innocence claims.

But this year is different. The threat posed by Prop 66 has largely unified abolitionists behind Prop 62. In a new round of surveys sent by the CEDP to California’s death row, respondents have widely backed it as well. While people serving life without parole in California still warn that Prop 62 promotes a different kind of death sentence, others argue that the ends clearly justify the means. For Wilson, who would never deny the power of redemption, it is a question of priorities as well as what is realistic: “We have to stop a system that actively kills people. That’s it. There is no way that the public would go for taking people from death row and giving them the possibility of parole someday. That ain’t gonna happen. Nobody is brave enough to do that.”

Today, the same people responsible for bringing the death penalty back to California are among its harshest critics. Ron Briggs, who pushed the ballot measure that vastly expanded the death penalty in 1978, is a supporter of Prop 62. So is the man who actually wrote the 1978 ballot measure in question, an attorney named Donald Heller. Not only does Heller consider his law to have been misinterpreted and overused, as he told me last January, he is certain it led to the execution of an innocent man.

For others, who did not play a role in its design, applying the death penalty in practice has turned them against it. Darryl Stallworth worked as an Alameda County deputy district attorney for 15 years, leaving the office in May 2007 — just two months before the death sentence came down for Irving Ramirez. Now Stallworth is a criminal defense attorney, working out of a dimly lit office in downtown Oakland.

Doubts crept in from the beginning. There was the recording of victim impact statements, a painful process in which grieving relatives shared their trauma — “just sad, sad things,” he said. “But I told them what I think a lot of people tell them. … ‘This is gonna make you feel better, you’re gonna get some closure.’ ‘Hang in there, this is gonna be OK.’ But in doing that, I was asking myself, ‘Are you really gonna be OK? Is this really gonna bring you closure?’”

Then there was jury selection, which lasted three months. As Stallworth gave out questionnaires, he began to realize the enormity of what he was asking people to do — to be “intimately involved in the process of executing someone.” He saw his own anxiety reflected in many potential jurors. “I hadn’t developed that place where I think prosecutors have to go, where you know, ‘I’m putting this person on death row, I want to kill them. This person is a monster.’ It started to feel like in order for the jury to legitimately consider executing somebody, they had to find them to be inhuman. And I had to see that the same way. And I struggled with that.”

Many of Stallworth’s misgivings had to do with the defendant’s age and background. The young black man was barely out of his teens; like many people who end up on death row, “he had lived a life that was a cycle of violence,” Stallworth said. “His mother was an alcoholic. She was in jail when he was born, never raised him. He was on the streets as a juvenile.” Stallworth remembers being determined to empanel a jury of his peers, only to struggle with that, too. “A lot of people of color don’t have jobs that are gonna pay them to sit for weeks or months. … You wind up getting this, most often, conservative group of people that are either retired or work for the government.”

Stallworth ultimately won a guilty verdict. But by then, he had been transformed. He held back from the dehumanizing rhetoric often used to demand a death sentence, simply asking jurors to weigh the aggravating circumstances against the mitigating ones. After a week of deliberations, the jury came back with a sentence of life without parole. “I’d lost the biggest case in my career,” Stallworth said, “but I had learned more than I ever could have imagined.”

Stallworth left the DA’s office soon afterward. A few years later, he was invited to lunch by a lawyer with the ACLU. “I don’t know how she figured that I might not have been all the way on board with what I had been doing,” he said. But he found himself sharing his story for the first time. Stallworth was asked to join the Prop 34 campaign. Knowing he would take heat from his former colleagues, he decided to do it anyway, and continued on to speak out on behalf of Prop 62. It would have been “cowardly” to remain silent given everything he knew, he said — and as a black man, he felt he had no choice.

Hundreds of miles south of Oakland, one of Stallworth’s most vocal opponents works in a small, windowless office in the heart of Los Angeles. In the downtown LA County Justice Center, Deputy District Attorney Michele Hanisee sits at a desk surrounded by case files laying out sex crimes and violent acts against children. On top of a stack of boxes sits a large poster that she designed. It bears the smiling faces of 14 young homicide victims, reading on the bottom: “227 children were murdered by the inmates now on death row.”

Hanisee is the president of the Association of Deputy District Attorneys for LA County, a position that keeps her especially busy these days. The union opposes initiatives like Prop 57 — an upcoming ballot measure to reform parole — as well as Prop 62, against which she is a leading voice. Hanisee has worked in the office for 16 years, about the same amount of time Stallworth spent as a deputy district attorney up north. But she shows no signs of stopping. As a prosecutor, she said, she has “the incredible luxury of always getting to do the right thing.”

White, blond, and raised in LA County, Hanisee’s experience runs parallel to Stallworth’s in one respect. “The first time you ever work on a death penalty case, that’s when you have to decide your feelings about the death penalty,” she said. “Until that moment, it’s purely hypothetical.” Her first capital case was the murder of a woman named Julie Cross, “the first female Secret Service agent killed in the line of duty.” As part of her job, she listened to the phone calls placed from jail by the defendant, who had been previously convicted of multiple murders. “I remember listening to this man’s calls with his young son. And he was saying, ‘Son, I’d kill a man for you’ — this was his display of affection for his son.” In all the capital cases she has prosecuted, Hanisee said, the killers have not only shown a lack of remorse — “They actually revel in the suffering they caused.”

Like everyone else, Hanisee concedes that the state’s current death penalty system is untenable. After defeating the SAFE Act in 2012, she and her colleagues agreed that “either we have to fix it or get rid of it. Not just be in this ridiculous stalemate where no one’s happy with what’s going on.” Prop 66 is “very complicated,” she admits, but she flatly rejects the notion that it is unworkable, saying its critics have probably not read the initiative. She has no patience for the warnings about inexperienced attorneys saddled with habeas appeals; if such lawyers don’t want capital cases, “then go get a different job and let somebody who will do this work take the money from the government.” As far as the practical problem of how on earth to address the backlog of people awaiting execution, she said, “I don’t think the goal is to clear death row. That would be perverse.” The goal, she said, “is to carry out the judgment of the juries of the citizens of this state in a reasonably prompt manner. But no one is suggesting that you should rush it and risk making mistakes. No one is suggesting that.”

Yet Hanisee is less clear-eyed when it comes to the systemic problems that plague the criminal justice system, whether proceedings are rushed or not. She refused to concede that California has ever sent an innocent person to die; when I cited a widely accepted tally of three death row exonerations in California to date, she said, “or questionably, none.” Even well-documented problems like racial bias are a “non-issue” as far as she is concerned. “All I know is my office never considers the race of the defendant.” While stressing that much of what is labeled “prosecutorial misconduct” is actually simple error, Hanisee did at least acknowledge the ongoing problems in Orange County, stressing that her office has protections guiding the use of jailhouse informants. But she took umbrage at the claim that such problems, paired with Prop 66, could result in the bad outcomes seen in more notorious death penalty states. “I don’t like being compared to Texas and Oklahoma,” she said. “This is California.”

On my last day in California, I met Steve and Raquel Herr, whose personal nightmare has been prolonged by the snitch scandal in Orange County. Retired teachers living in the affluent community of Anaheim Hills, they lost their only son — an Afghanistan war veteran named Sam — to a shocking murder in 2010. The killer, a community actor named Dan Wozniak, dismembered and decapitated their son, taking the stage in a play and attending a cast party later that night. “I was praying that the cops would find my son’s head on my birthday,” Steve Herr said. “I’ll never forget that.”

Wozniak was caught quickly, but not before luring one of his victim friend’s, Julie Kibuishi, to his apartment, killing her and trying to frame Sam for the murder. Police got a confession within a week, yet it took more than five years just for the case to go to trial. On the day I met the Herrs in mid-September, Wozniak still had not been formally sentenced. “Our son was murdered six years and four months ago,” Steve Herr said. Of some 190 hearings, he had attended them all, with one exception: “There was one I didn’t, because Raquel had a heart attack.”

Unlike Beth Webb — the Prop 62 supporter who blames the Orange County DA’s Office for delaying justice for her sister — the Herrs blame the public defender who exposed the office’s misconduct for using their case to advance “his own agenda.” Like many victims’ relatives in high-profile cases, they deeply resent that their son’s murderer has stayed in the spotlight. “Everything is focusing on Daniel Wozniak’s rights. Where are Sam and Julie’s rights?” Steve Herr asked.

Herr, the more vocal of the two in pushing Prop 66, was never particularly political. “But what occurred to our son made me political,” he said. He called for a death sentence from the start — years before Prop 66 raised the possibility of swift, certain justice. Indeed, like Dionne Wilson when she supported a death sentence for her husband’s killer, Herr knew better than to expect a fast execution for Wozniak. “Chances are, we’re not going to be around when he’s put to death,” he said. But death sentence made him feel vindicated — it validated his loss. “A jury is made up of 12 different people from all walks of life. They got it in an hour. They saw the heinousness of what Wozniak did. Knowing that the jurors got it, that was enough to me.”

A week after I met the Herrs, Wozniak was officially sentenced to die. As he had every other time, Steve Herr sat in the front of the courtroom. News reports also noted something he did not mention in our interview: Herr visited his son’s killer multiple times in jail, “looking for answers,” but was not swayed by Wozniak’s apologies. “I’ll never forgive you,” Herr reportedly told his son’s killer, “but I might hate you less.” Whatever closure the sentence may bring, it will not necessarily hinge on the future of capital punishment in California.

The post End the Death Penalty or Speed It Up – California Faces Opposing Ballot Initiatives appeared first on The Intercept.

But despite the burst of outrage, the ugly truth is that Trump’s attitude is all too common in district attorneys’ offices around the country. Not only have prosecutors defended the convictions of innocent people in the face of exonerating evidence, they will often block efforts to test for such evidence as DNA in the first place. Once a conviction is overturned, DAs often refuse to drop charges, dragging out a legal fight while dangling the specter of re-imprisonment over men and women who just want to move on with their lives. If a person is officially exonerated and seeks compensation, it is not uncommon for DAs to fight these efforts as well.

There are important exceptions. On Sunday, amid the chatter about the presidential debate, the shocking news that Brooklyn District Attorney Ken Thompson had died of cancer met with an outpouring of grief from exonerees and criminal justice activists over social media. Thompson, who was just 50 years old, oversaw 10 exonerations in his first year in office, an unthinkable record for an elected district attorney. He did not stop, doubling that number before he died.

Thompson transformed the lives of men like William Lopez, who spent 23 years in prison for a crime he did not commit. Lopez, whom I wrote about in 2014, had been released by a federal judge who called his case “rotten from day one.” Yet Charles Hynes, Thompson’s predecessor, refused to drop the charges, instead taking steps to re-convict him. Lopez lived in fear of returning to prison, unable to fully to adjust to his new life outside. His torment subsided thanks to Thompson, who finally dropped the charges and the appeal, calling it “contrary to the interest of justice.” Months later, Lopez died of an asthma attack. In a post on Facebook Sunday night, a friend of Lopez — a fellow exoneree who helped win his freedom — mourned Thompson, calling him “a champion for the wrongfully convicted.”

New York has come a long way since the exoneration of the Central Park Five. It was Hynes, ironically, who first established Brooklyn’s Conviction Integrity Unit — a model that has caught on in jurisdictions across the country. Yet even in places where such offices exist, they do not dissolve prosecutors’ resistance to the notion that the state can ever get it wrong. When I recently cited the handful of death row exonerations in California during an interview with an assistant district attorney in Los Angeles, she questioned whether any of these people were truly innocent, raising the possibility that “none” of them were.

Those who come to terms with wrongful convictions often do so too late. Last year, a former Louisiana prosecutor named Marty Stroud penned an anguished apology to Glenn Ford, an innocent man he sent to death row. The letter caused a stir — the National Registry of Exonerations called it “uniquely powerful and moving.” Yet Ford was denied compensation from the state and died of cancer months later.

Prosecutors are not solely to blame, of course. Governors also deny justice to the wrongfully convicted. Days before Trump’s unrepentant remarks about the Central Park Five, his running mate, Indiana Gov. Mike Pence, refused to grant an executive pardon to an Indiana man cleared by DNA evidence of participating in an armed robbery. After almost 10 years in prison, the man had waited three more years for a response to his clemency request. Through his lawyers, Pence said no.

Trump, of course, is a uniquely loathsome character who happens to be the GOP candidate for president, and whose words have dominated the news cycle for months. His insistence on the guilt of the Central Park Five is particularly galling in that it comes not from a DA defending his conviction, but from a private citizen who viciously weaponized his wealth against five innocent youths. “Maybe hate is what we need,” Trump told Larry King in 1989 when asked about his vigilante publicity blitz.

Yusef Salaam, one of the Central Park Five, has told the story of Trump’s vindictiveness for years. In 2005, when New York held hearings over the possible reinstatement of capital punishment, Salaam reminded lawmakers of Trump’s full-page BRING BACK THE DEATH PENALTY ad in the New York Times, noting that if the billionaire had gotten his way, Salaam would be dead. (I testified that day too, later getting to know Salaam through our mutual work with the Campaign to End the Death Penalty.)

Clinton, who was a New York senator when the Central Park Five were exonerated, has tried to move past her own rhetoric about “superpredators,” a term popularized by the case, to adopt the mantle of racial justice. On Friday, her campaign condemned Trump’s statement about the Central Park Five as “yet another racist lie.”

Clinton has shown some concern over wrongful convictions, having co-sponsored the Innocence Protection Act, providing for DNA testing and compensations in federal cases. But her sincerity — both on race and innocence — is undermined by her continuing support for the death penalty, as a death row exoneree from Ohio discovered firsthand at a town hall earlier this year. While in theory one can support executions while opposing sending innocent people to die, the exoneration of 156 death row prisoners to date shows how irreconcilable these positions are in real life. In a break from its own nominee, this year the DNC made abolishing the death penalty part of the Democratic platform.

But Clinton need not worry that such contradictions will obstruct her path to the White House. As George W. Bush showed, even the most cavalier approach to executions will not derail a presidential candidacy. As for Trump, his stance toward the Central Park Five is an expression of the racism and fearmongering that has animated his candidacy from the start. But it is also a form of denial that remains all too prevalent in the criminal justice system, even as Americans are more aware than ever of wrongful convictions.

As Trump showed in his defense of sexual assault, some people will never admit they are wrong. This, ultimately, is the reason so many remain in prison for crimes they did not commit.

But as the letter of apology from Marty Stroud demonstrated, changing your mind can be a powerful thing, precisely because it is so hard. Condemning Trump is easy. If Clinton truly wants to show that she cares about men like the Central Park Five, reconsidering the death penalty would be one good place to start.

Top photo: Woody Henderson, right, from the National Action Network, leads a demonstration outside the Manhattan Criminal Court in New York on Sept. 30, 2002, protesting the conviction of the Central Park Five.

The post Donald Trump’s Ugly Attack on the Central Park Five Reflects All-Too-Common Attitude appeared first on The Intercept.

Today, Kenny is known as Pastor Kenneth Glasgow, the man behind The Ordinary People’s Movement (TOPS), in Dothan, Alabama. It is “an oasis,” as described by the writer and Drug Policy Alliance activist asha bandele; a place where community members and the formerly incarcerated come for housing and sustenance — not to mention the grassroots headquarters for “some of the most far-reaching drug policy and criminal justice changes in Alabama.” It’s because of Glasgow that state officials have been recently forced to follow the law where voting rights are concerned. For years, it was widely assumed that anyone convicted of a felony in Alabama lost the right to cast a ballot, at least until being released from prison. In reality, the law was narrower than that — only convictions “involving moral turpitude” could disqualify people from voting, yet the state didn’t bother to define which crimes fell into the category. Unbeknownst to them, thousands of incarcerated Alabamans still had the right to vote. “This is an issue that’s never come up before,” the state commissioner of corrections told the New York Times in a 2008 story on Glasgow. “I would think that if there were any latent feeling out there that they wanted to vote, they would have expressed it by now.”

The conference took place at the Oakland Airport Hilton, kicking off with a jubilant tribute to the founders of the FICPFM. Central among them was the “godfather of our movement,” Dorsey Nunn, co-founder of the California-based group All of Us or None. In 2011, Nunn joined Pastor Glasgow and others in Selma, Alabama, marching across the Edmund Pettus Bridge under the banner of the Formerly Incarcerated People’s Movement. Once serving a life sentence in California, Nunn is now widely recognized for his decades of activist work; he coined the term “Ban the Box,” a campaign to abolish barriers to employment for people with a criminal record, an idea embraced last year by Barack Obama. Last year, Nunn received a Champion of Change award from the White House.

The love for Nunn was palpable. “Dorsey! Dorsey! Dorsey!” the audience shouted during the opening plenary; an emotional Glasgow vowed never to let his name die. Glasgow also gave a special shout-out to his mother in the audience, affectionately known as Mama Tina, thanking her for supporting him throughout his incarceration, including even when she was forced to pawn her belongings to make ends meet. A standing ovation brought tears to her eyes. “I couldn’t help but cry when he was speaking,” she told me afterward. “Because I did not expect all of that back when I was praying for God to change his life.” Today, she urges people with a loved one in prison, “Don’t give up on them. A lot of people give up on them — especially if they commit a lot of crimes or have long sentences. Don’t ever give up on them. Because you never know what God’s gonna do.”

Tina is heartened by the recent embrace of criminal justice reform among mainstream politicians. But she is clear that it would never have happened without the work of those like Nunn and her own son, who fought for years before anyone in power listened. “I am 70 years old,” she says. “It should have been this way all the time.”

Not Just Another Nonprofit

At a time when genteel, bipartisan criminal justice-themed summits seem to take place every day, the gathering in Oakland was decidedly militant by comparison. (“Building a Movement, Not Just Another Nonprofit,” read the slogan on pamphlets for All of Us or None.) Speakers identified themselves as prison abolitionists and anti-capitalists, many calling one another “comrade.” Coinciding with the 45th anniversary of the Attica uprising in New York — as well as a planned nationwide prison strike — a panel on September 9 focused on political prisoners, featuring people like Sekou Odinga, a Black Panther and member of the Black Liberation Army who helped break Assata Shakur from prison, later spending 30 years behind bars. It also included a powerful appearance by Angola 3 member Albert Woodfox, released in February of this year after surviving more than 43 years in solitary confinement, who began by saying, “All power to the people.” For their extraordinary biographies, however, panelists encouraged participants to broaden their idea of what constitutes a political prisoner. “When we’re sitting here in 2016 talking about our rights, that we are being denied the right to vote for political reasons, that you’re being [denied parole] for political reasons,” one speaker said, then what are you? “If we had the right to vote, imagine the political impact.”

The speakers weren’t the only ones with deep radical roots. An older woman named Sister Sheba knitted quietly throughout the panel, occasionally nodding in agreement. Later she told me she had been in prison herself, under the name Claudia Grayson, after operating the George Jackson People’s Free Health Clinic in Berkeley as a lieutenant in the Black Panther Party. Her daughter, now in her 40s, is named Attica. “I was like five months pregnant when I heard about the rebellion at Attica,” she recalled. “My daughter kicked the mess out of me and I was like, ‘OK, that’s your name!’”

Like many at the conference, Sister Sheba was magnanimous about the more mainstream energy rising up around criminal justice reform. “There’s always been more than one track in terms of fighting oppression,” she said, adding that it often comes down to people’s economic background. “You do need educated people who know the law to counteract the unfair laws,” she said. At the same time, you also need more confrontational activists, those who will say to people in power, “You can make a deal with us or you can make a deal with them — but you’re gonna deal with somebody.”

Mixed Messages From the Obama Administration

It is emblematic of the power within the FICPFM that the Obama administration now finds itself dealing with so many of its members. In 2014, Pastor Glasgow, Dorsey Nunn, and six other formerly incarcerated activists who were present in Oakland last weekend — Daryl Atkinson, Susan Burton, Norris Henderson, Manuel LaFontaine, Glenn Martin, and Vivian Nixon — were invited to meet with senior staff to discuss the needs of people coming home from prison. Officially known as the Federal Interagency Reentry Council, its members sought their input as they laid their goals and strategies. As Pastor Glasgow told the crowd, “something transformed” that day. “In that meeting they didn’t see ex-felons no more. In that meeting they seen people who have been incarcerated. Experts by experience. Serving our country after serving our time.”

Such encounters have not all been smooth sailing — last year, Glenn Martin, founder of JustLeadershipUSA, wrote an open letter to President Obama describing the humiliation of having arrived at the White House after being invited for a policy discussion, only to be told by security that he needed a special escort. On stage, Martin said he had been encouraged by the response from the White House, which appeared to take his letter seriously. In particular, he lauded Assistant Attorney General Karol Mason — perhaps the most surprising speaker to appear in Oakland — for her work at the Department of Justice’s Office of Justice Programs to advance among her colleagues the “moral argument for why they needed to be more courageous before this administration ended.” In a Q&A with Martin, Mason described the work being done by the Reentry Council and others within the Obama administration, for example, a pilot program restoring Pell Grants to people in prison.

Mason, who worked in private practice in Atlanta for more than 25 years — she was the first black woman to make partner at her firm — worked to establish common ground with the crowd. She said she has cousins who have done time and referred to Nunn and his cohort as friends. But there were inevitable disconnects. A reference she made to the Broadway musical “Hamilton” fell flat — predictable in a room where many people needed financial assistance to make the trip. Concerns she expressed about “collateral consequences” clashed with the wider contention — often heard among radical activists — that the system is not “broken” but operating exactly as designed, marginalizing poor people and people of color. And as Mason described efforts by the Federal Bureau of Prisons to let people with children “still be parents when they’re incarcerated,” one woman yelled, “Don’t send them to prison!,” eliciting cheers.

There was plenty of awareness in Oakland that the Obama administration has been no model for human rights — from its deportation record to the treatment of Chelsea Manning, who was beginning a hunger strike as Mason addressed the audience in Oakland. At the same time, between the president’s historic visit to a federal prison to his ongoing clemency initiative, many criminal justice activists could not have imagined such moves from the White House just a few years ago. Certainly, Mason’s individual efforts at the DOJ suggest a personal commitment to the cause; it was she who directed her office earlier this year to stop using dehumanizing language like “felon,” “convict,” or “offender”; in the Washington Post, she described them as “useless and demeaning labels that freeze people in a single moment of time.” Such moves might seem purely symbolic or superficial, especially compared to concrete policy changes, but for groups like All of Us or None, language is a prime concern. Participants in Oakland repeatedly invoked the need to reject the well-meaning progressive term “returning citizen” for people who leave prison, since it erases the criminalization of noncitizens and undocumented people. The name “All of Us or None,” after all, is itself a commitment to leaving no one behind, to abolishing the misleading distinctions between “violent offenders” and “nonviolent offenders,” for example. It also means sticking up for the so-called “undeserving,” as one panel put it. “My son may not be going to get Skittles and iced tea,” Nunn said, invoking Trayvon Martin. “My son could be going to get a beer and a blunt — and he should still have the ability to make it home.”

In a sense, even Mason’s directive at the DOJ can be traced back to Attica, where the famed rallying cry was “We are MEN.” It was veteran activist Eddie Ellis, who was there in 1971 when the men inside the prison rose up, who decades later wrote an open letter rejecting labels like “felon” or “convict” and asking that society “simply refer to us as PEOPLE.” Ellis died in 2014; his named was invoked repeatedly in Oakland. As the conference came to a close, Glenn Martin described how he and the FICPFM stood on the shoulders of leaders like Ellis, who “had a vision for this and much more. Here it is, years later and he’s not here to see that.” To Martin, the gathering in Oakland is a pivotal moment for a movement that will continue to build no matter who is in the White House next year. As they showed the Obama administration during that critical meeting in 2014, “We didn’t need people to organize us, we needed resources. We were already organized.”

Top photo: Cisco Torres, Dr. Robert King, and Sekou Odinga share their experiences of incarceration during a panel discussion on September 9, 2016 in Oakland, California.

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The post Former Prisoners Are Leading the Fight Against Mass Incarceration appeared first on The Intercept.

Ali was not alone. Earlier this year, the Indonesian government announced it would soon execute more than a dozen unnamed prisoners, the third round of executions following a four-year moratorium on capital punishment. The announcement — part of a zero-tolerance drug policy implemented under President Joko Widodo in 2013 — sparked grim speculation about who might be next to die. There were the three drug offenders transferred to Nusa Kambangan from Batam, a different island prison, in early May, as reported by the Jakarta Post. Or four “black-skinned people from Nigeria,” in the words of the sentencing judge in the case of Humphrey “Jeff” Ejike Eleweke, who was targeted for surveillance because of his nationality — and who swore he was innocent. By Thursday morning, July 28, newspapers reported, coffins were being ferried to Nusa Kambangan, while family members and spiritual advisers were given name tags for their final visits — “an indication that executions were imminent.” Yet, when it came time to carry out the executions later that night, only four of the 14 were killed. Early reports out of Indonesia said it was unclear who was among the dead. Later, it was revealed that Ali’s life had been spared.

The unexpected turn of events echoed a different last-minute reprieve, one that occurred in 2015. In late June, thousands of miles from Nusa Kambangan, a diminutive Filipino woman spoke from a stage at the Oslo Opera House, a sleek white building on the harbor of Norway’s capital city. “My name is Celia Veloso,” she said in her native Tagalog. “I am the mother of Mary Jane Veloso, who is on death row in Indonesia.” Arrested at the Java airport with heroin in her suitcase, Mary Jane was nearly executed in April 2015 alongside eight other drug convicts, but was spared at the last second. The hasty reprieve was so unexpected that people in the Philippines awoke the next day to inaccurate headlines reporting her death.

The family members of Philippine death row drug convict Mary Jane Veloso — her father, Caesar, mother, Celia, and sons Mark Darren and Mark Danniel — wait outside the Yogyakarta prison on Jan. 12, 2016, before visiting Veloso to celebrate her 31st birthday.

Photo: Suryo Wibowo/AFP/Getty Images

Yet it was Sergio who later stood in the way of Mary Jane’s execution, by turning herself in to police in Manila just hours before she was to die. With Sergio’s own trial now underway, Mary Jane is set to testify against her. Her family hopes that her testimony will force the Indonesian government to recognize she was a victim and commute her sentence altogether. “We long for the day when she will be reunited with her sons,” her mother said in Oslo, breaking down in tears. “We hope with your help that she can return to the Philippines and start a new life.”

The people in the audience included lawyers, academics, and human rights activists. They had traveled from 121 counties for the Sixth World Congress Against the Death Penalty, a three-day event featuring speeches, panels, and artistic performances. Inside the Opera House, there was anti-death penalty artwork by high school students; an “Abolitionist Village” housing activist booths and literature; and a large map of the world highlighting “retentionist countries” — the label given to nations that hold on to capital punishment. Outside, in the heart of Oslo’s fashionable tourist center, red and blue banners lined the street where visitors dined and shopped, carrying the event’s official logo, a handprint reading ¡ABOLITION NOW!

Paul Wilkins and Andrew Chan in January 2015 at a church service inside Kerobokan prison in Bali.

Source: Paul Wilkins

But in Indonesia, the deadliest offenses are drug crimes. All 14 people executed last year were convicted of drug trafficking, and all but two were foreign nationals. With hundreds of Indonesians on death row in other countries, many have decried the hypocrisy of a government that fights to save their own people while targeting foreigners for execution. As a reporter for the Jakarta Globe wrote in 2011, “How can Indonesia expect other countries to grant clemency for our citizens while standing firm on the death penalty for foreign convicts in this country?”

With Indonesian officials hinting they would carry out new executions after Ramadan ended, the specter of new executions loomed in Oslo last month. One Indonesian speaker displayed a graph showing how executions rise during election years. Another presenter discussed the case of a Brazilian man named Rodrigo Gularte, among those shot to death after Mary Jane won her reprieve. News reports described how Gularte, a paranoid schizophrenic, was unaware of what was going to happen to him until he was taken out of his cell. “Am I being executed?” he asked.

A coffin arrives at Wijaya Pura port for transfer to Nusa Kambangan ahead of the executions of the Bali Nine on April 28, 2015, in Cilacap, Central Java, Indonesia.

Photo: Ulet Ifansasti/Getty Images

Chan was one of the famed Bali Nine, a group of Australians convicted of drug trafficking in 2006. Along with a man named Myuran Sukumaran, Chan had recruited drug mules to smuggle heroin into Australia. Both were sentenced to death. While in prison, Chan had become deeply religious, evolving into a role model for his fellow prisoners. As his execution neared, his case became a cause célèbre, with politicians and celebrities trying to intervene. But Paul knew Chan simply as Andy, a family friend whose company he’d come to enjoy. They talked trash about each other’s favorite rugby teams and cracked dark jokes — “We had a fairly similar sense of humor,” Paul recalls. After Chan was flown in shackles from Bali to Nusa Kambangan, Paul recalled, he laughed at the absurdity of the security video that had been played prior to takeoff. “If the plane’s going down, I’m clearly going down with it,” he said.

A worker holds the tombstone of Zaenal Abidin, one of eight drug convicts executed, during a funeral service at Nusa Kambangan prison on April 29, 2015, in Cilacap, Central Java, Indonesia.

Photo: Ulet Ifansasti/Getty Images

On March 4, 2015, Chan and Sukumaran — a talented artist known to Wilkins by his nickname, “Myu” — were flown from Bali to Cilacap, a signal that their execution was weeks away. The transfer was a show of force; police in riot gear stood by while an armored “Barracuda” vehicle came to take the men. The next month, on April 25, Indonesian officials gave the state’s minimum 72 hours of notice that Chan, Sukumaran, and six others would be executed within days. On April 28, they were dressed in white and led to the field, with Chan leading them in singing “Amazing Grace.” Tied to cross-shaped poles and lined up in a row, the group declined to wear the blindfolds offered to them by the prison. At his funeral, Chan’s wife, Febyanti — who he married as a last wish granted by the government — described how Chan had worn his much-hated glasses so he could look his executioners in the eye.

Chan’s funeral was held at the largest church in Sydney. Hundreds attended and thousands more watched it via live-stream. A childhood friend of Chan’s read a eulogy he had penned for himself before he died. “Ask yourself, what story did I leave you with?” he wrote. “That will determine my legacy.”

A booklet shows a photo of Andrew Chan on the cover during his funeral service at Hillsong Church on May 8, 2015, in Sydney, Australia.

Photo: Hillsong Church/Getty Images

In Oslo, Wilkins introduced himself to as many people as he could. It was the first time he had been surrounded by so many people who had some lived experience with the death penalty. For all the public support showered upon his friend — rare for any prisoner — Wilkins had not escaped the strange, disenfranchised kind of grief often felt by those whose loved ones are killed as a matter of law. When the state takes a life in the name of justice, mourning is not socially sanctioned; even as Wilkins received kind text messages from friends last year, he gave up social media to avoid the nasty comments from strangers.

As the one-year anniversary of Chan’s death approached, Wilkins decided to make some changes. Two old friends had unexpectedly died in rapid succession after the execution; he realized he had neglected other relationships. He stopped drinking and focused on exercise. Perhaps most important, Wilkins decided to start telling his story. He began by putting his thoughts on paper. He wrote about his visit to Nusa Kambangan to see Chan for the last time, describing the moment he realized the field behind them was the place where he would die. He wrote about the many loved ones Chan left behind — his mother, his brother, his nephew. He wrote about the uselessness of executing drug offenders as a deterrent when there was always someone new to take their place. He wrote about his friend’s selflessness in his final hours, how he arranged for a delivery of KFC to other death row prisoners, how counterproductive it was for Indonesia to have killed a man who had done so much good in such a bleak place. Wilkins did not know what he would do with the essay. But it represented a bigger goal he set for himself. It had been nearly 50 years since his own country had executed anybody, he concluded. “My hope is that in the future, Indonesia and other countries around the world that still carry out the death penalty will be able to say the same thing.”

Paul Wilkins and Celia Veloso at the Sixth World Congress Against the Death Penalty in Oslo, Norway.

Source: Paul Wilkins Instagram

Top photo: Indonesian police guard Wijaya Pura port, which is the entrance gate to Nusa Kambangan prison, as Indonesia prepares for its third round of drug executions on July 27, 2016, in Cilacap, Central Java, Indonesia.

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The post The Long Cruel Reach of Indonesia’s Death Penalty appeared first on The Intercept.

PREA is the Prison Rape Elimination Act, sweeping federal legislation targeting the nation’s prisons and jails. Passed in 2003, the law was aimed in part at places like this — facilities for youth who present a danger to others or themselves. But while PREA has proven hard to implement, that’s not why I was there that day. Less than a year after Shelby County Sheriff Bill Oldham took over the detention center that sits directly above juvenile court, officials were running dangerously afoul of a different federal intervention — one designed specifically for Shelby County.

In the spring of 2012, the U.S. Department of Justice released the scathing results of a civil rights investigation into the Juvenile Court of Memphis and Shelby County (JCMSC). Almost 50 years after the U.S. Supreme Court ruled that kids have the same due process rights as adults, the system in Memphis seemed frozen in time. Children received little meaningful defense representation in delinquency hearings and were subjected to hurried, ill-informed, and arbitrary decisions, including transfers to adult court. Worse, “we found that African-American children were treated differently and more harshly,” Assistant U.S. Attorney General Tom Perez said. While white kids who broke the law were often sent to diversion programs, black kids were more than twice as likely to be treated like adults. Those kept in custody here were subjected “to unnecessary and excessive restraint,” the DOJ report said, including the use of controversial “restraint chairs.”

It was not the first time the Justice Department had found problems in Memphis.

It was not the first time the Justice Department had found problems in Memphis. In 2000, the Civil Rights Division investigated 201 Poplar, the notorious adult jail down the road, after a prisoner was gang raped and sued in federal court. Finding intolerable conditions, the DOJ assigned a federal judge to oversee changes, who concluded in 2009 that the jail had achieved “substantial compliance” with its reforms.

But this time was different. The investigation into juvenile court was the first time the DOJ invoked a little-known clause of the 1994 Violent Crime and Law Enforcement Act — otherwise known as the Crime Bill — that gave it authority to intervene where it found constitutional violations in a local juvenile justice system. President Barack Obama’s administration offered what Perez called a “first of its kind” deal: a Memorandum of Agreement among the court, the county, and the DOJ. It was a blueprint for reform; independent monitors would regularly visit Memphis, submitting progress reports to the DOJ. The process would end when the court achieved — and maintained for one year — “substantial compliance with all substantive provisions” of the deal. The U.S. attorney for the Western District of Tennessee predicted Shelby County would become “a model for juvenile courts systems across the country.”

But more than four years later, that lofty goal seems out of reach. By the time I came to Memphis in early June, city residents were frustrated. While there was much documented progress in the hundreds of pages of monitors’ reports since 2012, the latest round — made public in March — contained significant red flags. One monitor had found “a serious lack of movement” to address racial disparities. More alarming, in a visit to the detention center last fall, another monitor, David Roush, found an “across-the-board deterioration … since the transfer of the facility to the sheriff.” There were more assaults, more kids exhibiting suicidal behavior, and more staff “reporting that they fear for their safety.” Although the restraint chair had been swiftly abolished, there was also “a 303 percent increase in the use of mechanical restraints.”

In early April, some 200 people attended a public meeting at the Civil Rights Museum, in the shadow of the Lorraine Motel, where Martin Luther King Jr. was assassinated. DOJ Special Litigation Counsel Winsome Gayle had traveled from Washington to speak. Among the attendees was a rapper and activist named P. Moses, co-founder of Black Lives Matter Memphis. The longer she listened, the more she felt “it was all for show.” Moses knew the limits of a federal intervention. She had once written a tribute to a black transgender woman named Duanna Johnson, who was beaten by Memphis cops at 201 Poplar in 2008 — just one year before the DOJ quietly lifted its oversight over the jail. Johnson was later shot dead in Moses’s neighborhood. Just a few days before this meeting, Moses had learned that the white police officer who shot and killed an unarmed black 19-year-old during a traffic stop would be allowed to retire with a government pension after being diagnosed with PTSD. News reports suggested the DOJ was looking into the shooting, but no one had heard much since.

She wanted to know why the supposedly cash-strapped juvenile court had received $250,000 from the county commission to install bulletproof safety glass in the judicial chambers.

Moses had a specific question in mind. She wanted to know why the supposedly cash-strapped juvenile court had received $250,000 from the county commission to install bulletproof safety glass in the judicial chambers. To Moses, the action held deep symbolism. If officials were fortressing themselves from the families they are supposed to serve, “What is that saying to the community about what you think of our children or what they’re gonna be in a few years?” Did they have any faith in their own agreement with the DOJ? And how are Memphians supposed to believe things will get better if the court is preparing for the worst? On the Black Lives Matter Memphis Facebook page in April, Moses posted a news report about the red flags at the detention center. “The problem is the system,” she wrote, “not the children.”

Today, far beyond Memphis, there is a growing recognition that the problems underlying crime are systemic — and that America’s criminal justice system has been a devastating failure for kids — especially kids of color. The Obama administration has sought ways to steer young people away from its grip, through initiatives like My Brother’s Keeper and the National Forum on Youth Violence Prevention, whose selected cities included Memphis. There is also a wider cultural backlash against decades of crime policy that said children stopped being children once they were accused of breaking a law, from the U.S. Supreme Court’s chipping away at the harshest punishments for juveniles to activists who have confronted Hillary Clinton with her past rhetoric about “superpredators.” The shift is especially consequential at the state level, where “adult time for adult crime” is increasingly seen as bad policy. The National Conference of State Legislatures has documented wide-reaching attempts to “restore jurisdiction to juvenile court.”

But as Shelby County shows, any meaningful changes will require a deeper reckoning. The DOJ’s experiment in Memphis could have been carried out in cities across the country. Last year, following the upheaval in Ferguson, Missouri, after the clearing of the cop who killed 18-year-old Michael Brown, the DOJ released an investigation into the juvenile justice system in St. Louis County, which exposed parallel problems to those in Memphis, including the blunt observation that “black children are treated significantly worse than white children.” At a time when Americans have looked to the Obama administration to hold law enforcement officials accountable for violence against black communities, a daunting question looms: Whose job is it to fix systemic problems that have existed for generations? And how do they do it?

Juvenile Court Judge Dan Michaels in his office on July 11, 2016.

Photo: Brandon Dill

As I toured the Memphis detention center in June, I had another question in mind. Why would a juvenile court under federal monitoring hand over control to the local sheriff? The transfer flew in the face of experts like Roush, the monitor who called it “accepted best practice” for kids to be detained in facilities operated by a “youth-serving parent agency … not local law enforcement.” Police are trained to exert authority and force compliance — standard in adult jails, but counterproductive at best when used on kids. It seemed like a blatant step backward.

Nevertheless, Fields and his lieutenant were eager to show that they are running a kinder and gentler jail. The cafeteria had a fresh coat of paint and a ban on talking during meals was being lifted. A Positive Behavior Management System (PBMS) was being rolled out, in which kids could earn points for privileges; bright signs posted messages like “PBMS: SEEKING SOLUTIONS, NOT BLAME.” An empty cell was now a makeshift library, with a rug and plastic chair abutting a metal toilet, and a former storage area was being used to expand Hope Academy, the court’s K-12 program. A friendly counselor showed me a monthly “newsletter” she produces, four photocopied pages printed with blurry photos of animals, a poem, and word games. One page listed three boys’ upcoming birthdays, alongside a message: “May all your dreams and wishes come true!”

All the kids I saw were black. Fields, who is also black, offered an explanation for some of the alarming figures found in the monitors’ reports.

The relative quiet was at least somewhat due to a steady drop in admissions in recent years, thanks in part to the implementation of things like the Law Enforcement Assessment Phone-In — which lets police issue summons rather than arresting kids for minor offenses — and a new Detention Assessment Tool, which measures whether to hold or release kids brought into custody. The official population that afternoon was 48, an encouraging drop from Roush’s last visit, which found 81. All the kids I saw were black. Fields, who is also black, offered an explanation for some of the alarming figures found in Roush’s report. “Our policy states that anytime we put restraints on a child, it’s considered ‘use of force,’” he said. This includes such routine tasks as transporting a kid to a medical appointment, where handcuffing is “standard operating procedure.” In the interest of accuracy, Fields said, the department is now separately documenting such routine tasks from confrontational incidents.

Downstairs, I met Juvenile Court Judge Dan Michael, who called the latest figures and media reports overblown. A seventh report was due for release any day now — it would set the record straight.

A bald, bearded man with an affable air, Michael wore a light suit and a yellow bow tie. His signature white cowboy hat hung by his desk. Previously chief magistrate of juvenile court, he had been elected in August 2014, defeating city court judge Tarik Sugarmon. The candidates represented distinct eras in Memphis politics. Although Michael’s campaign website described how he ran his family’s auto shop before becoming a lawyer at age 40, he had first been appointed to the court in 1997 by veteran Judge Kenneth Turner, who embodied the court’s entrenched white establishment. Sugarmon was the son of black civil rights activists; he marched with Martin Luther King Jr. during the sanitation strikes and participated in the “Black Monday” boycotts of 1969, in which students stayed home from school to protest segregation. Sugarmon’s father, a retired judge, previously worked under Turner at juvenile court. On the campaign trail, the younger Sugarmon invoked the DOJ investigation: “We have now a 50-year continuum of a system that, up until recently, we were the only ones that knew it was unfair.”

Despite his ties to the court’s establishment players, Michael considers himself something of a reformer. “I think of myself as a change agent,” he told me. He exudes compassion for the juveniles in his care, while talking seriously about crime. “My role is to save that child’s life while protecting you,” he assured an audience after his election. He also wanted to make something very clear to me: “We don’t jail children.” The facility upstairs, he reminded me, is “pre-trial only.” A court officer stressed the same thing during our tour — “remember, this is not a jail” — but it seemed like a distinction without a difference. Children may sleep in single occupancy “rooms,” not “cells,” but the steel toilets and thin green mattresses betrayed the euphemism.

When I asked why he had handed the detention center to the sheriff, these distinctions were harder to maintain.

Yet, when I asked why he had handed the detention center to the sheriff, these distinctions were harder to maintain. “The sheriff of Shelby County is the professional jailer, if you will,” Michael explained. “He runs all the pretrial centers.” Faced with hiring and budget challenges, he’d decided to leave detention to the experts, to “make sure those children got the protection they need.”

I asked about the stark racial disparities — or Disproportionate Minority Contact (DMC), in DOJ parlance. The last report on equal protection suggested a lack of will to address it. “Again, the Court MUST take the lead on this,” it urged, in bold text. Although Michael credited the Law Enforcement Assessment Phone-In and other tools for reducing the total number of kids in the system, the monitor found that the race gap had actually increased among those in detention. “I’m gonna be real blunt with you,” Michael said. “The federal government cannot point to one DMC program anywhere in the country that they have funded that has successfully lowered the stat,” he said. “Not one.” Memphis is a majority black city. Its problems go back to the era of forced busing, white flight and all the myriad factors that set the stage for the high poverty, crime, and unemployment that plagues this and other urban centers. If it was up to any one person to fix this, he seemed to be saying, it was not up to him.

Michael reiterated his commitment to reform — but he doesn’t want the federal government in Memphis forever. “My goal is to complete the MoA and say, ‘Bye, we’re good. Let’s move on.’”

The exterior of Shelby County’s juvenile courthouse.

Photo: Brandon Dill

For a tidy history of its youth justice system, Shelby County offers a 30-minute film made in 2010 titled “100 Years of Juvenile Court.” Set to soft piano music, the story begins with an 1898 editorial in The Commercial Appeal, “To Save the Young.” It asked lawmakers to address the problem of kids jailed alongside adults — a growing concern of the progressive movement. “What police need now is a place for juvenile offenders that fall into their hands,” the editorial read, “but they will not get it until this county agrees to share the expenses of establishing one with the city.”

The tension between Shelby County and the city of Memphis has never been resolved. Today, Memphis is surrounded by affluent, nearly all-white suburbs like Germantown and Collierville, which became incorporated towns in the mid-1800s. The largely unspoken divide becomes most explicit where children are concerned; following a controversial plan to consolidate Memphis city and Shelby County schools in 2011, numerous suburbs broke off to form their own municipal districts.

The Commercial Appeal article did not have black children in mind. While today juvenile jails are a symbol of criminalization of black youth and the school-to-prison pipeline, the establishment of the new juvenile court in 1910 reflected the influence of white child welfare activists, particularly the women behind the Memphis Playground Association, which sought to keep children off the street. In Gateway to Justice, an early history of Shelby County’s juvenile court, historian Jennifer Trost describes how it fell to Memphis’s black community to keep pace with new models of juvenile justice. “As long as blacks did not challenge the rules of segregation and took on the responsibility for funding separate facilities,” she wrote, “white reformers were willing to accept their participation.”

Memphis’s juvenile justice system took shape against a particularly dangerous backdrop — at least 15 lynchings took place between 1890 and 1930.

The results were “separate and unequal.” In 1914, the Memphis Digest published an article about a 4-year-old orphan arrested for stealing a pair of shoes. The child was taken in by child welfare activist Julia Hooks, who created a black juvenile court through community donations. Why, the author asked, “are these Negro women of very moderate means and many heavy burdens left by the city to buy a court building, while the white children have recently been moved into admirable quarters provided by the cost of the city?” There was also the Shelby County Industrial and Training School, where a “negro department” was created only after local residents raised funds; the county dictated that white boys receive training, while black boys were “paroled” to do farm work for locals.

Memphis’s juvenile justice system took shape against a particularly dangerous backdrop — at least 15 lynchings took place between 1890 and 1930. Against such instruments of Jim Crow-era racial control, the court’s early, mostly female leadership was benevolent in its enforcement of white supremacy. One judge, appointed in 1920, saw the court as “a strong arm used to supplement home care and training, or to supply it where it does not exist,” according to Trost, who notes that inevitably, this meant using her authority “to enforce deferential behavior of black children toward whites.” There were “white days” and “colored days” for hearing cases, and “files were color-coded” according to race.

The court remained segregated until 1964, the year Judge Kenneth Turner — the judge who first appointed Michael — assumed the bench. A former police captain with no legal training, Turner is the unmitigated hero of “100 Years of Juvenile Court,” lauded for his colorblind approach to justice and for shaping JCMSC into a model admired nationwide. A memoir by an Episcopalian youth minister recalls how, early in his tenure, Turner’s juvenile summons program brought kids to his organization, helping them avoid a criminal record. But news reports reveal Turner’s more punitive innovations, a number of which especially hurt black families. He showed fondness for public shaming, inviting reporters to delinquency hearings and ordering bright orange vests reading, “I am a vandal.” He fined parents for truancy — “If you can’t control your child, call the police,” he told one mother — and charged room and board for kids in detention, a move hailed as “revolutionary” by one widely syndicated editorial. Turner was especially famous for prosecuting fathers who failed to pay child support. One 1967 article describes how he sent a man to Shelby County Penal Farm for nearly a year without advising him of his right to trial. Later, the Sixth Circuit Court of Appeals dismissed a civil class action alleging that JCMSC routinely jailed destitute fathers without any due process.

Presiding over juvenile court more than 40 years, Turner would ultimately embody the flaws of its design. Juvenile justice was rooted in a legal philosophy known as parens patriae, in which the state decides what is in a child’s best interest. For its noble intentions, the U.S. Supreme Court warned in 1966, in Kent v. United States, there was evidence that “the child receives the worst of both worlds … neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” This was true in the case of an Arizona teenager named Gerald Gault. After he was jailed for “placing lewd phone calls” to a female neighbor, the American Civil Liberties Union challenged his trial as “barren of any legal protection of a juvenile’s rights.” In 1967, the Court agreed, ruling for the first time that juveniles had such due process rights as the right to counsel and the right against self-incrimination.

But Turner’s attention was elsewhere. In March 1968, weeks before King was shot, he ordered arrests of students participating in the sanitation strikes, charging parents $10 a day for each day a child missed school. Asked about Gault that year, Turner said, “I’m more concerned with the fact that in Tennessee, 89 of our counties do not have proper facilities for the detention of juveniles.” While he was not alone in resisting the ruling, the 1973 PBS documentary Juvenile Court offered a glimpse into the result. “Guilt is presupposed by every adult from the outset,” one reviewer writes, “and all procedure seems deliberately geared toward searching for personality disorders, exacting confessions, or cutting plea deals with defense attorneys.” It was in this era, following a different ruling that required judges to be admitted to the bar, that Turner designed a “referee” system, appointing people to hear cases on his behalf, while preserving his authority. A Memphis police sergeant would later describe the atmosphere to journalist Nina Bernstein: Turner’s court had “its own rules, day by day.”

By the early 1990s, in keeping with the tough on crime era, Turner was increasingly transferring juveniles to adult court, calling them “vicious young criminals” — or “VYCs” — who should be separated from “juveniles who are more amenable to habilitation.” Today, Shelby County District Attorney Amy Weirich continues the tradition. While Weirich denies that race has any bearing on her decisions, the equal protection monitor has cited a “significant overrepresentation of Black youth” in her requests. One of the most positive results of the DOJ intervention has been a drastic drop in transfers granted by the court — from 194 in 2009 to 47 last year.

But vulnerable teenagers still end up in the adult system. In 2013, the Memphis Flyer described a transfer hearing for a black 14-year-old named Jonathan Ray, who had a history of abuse and mental problems. Ray had set fire to the steps of his house, killing his mother. With little time for his attorney to prepare — and against the pleadings of relatives — Michael concluded that Shelby County “can’t wait six years to see if [Ray] is fit for rehabilitation.” He sent him to adult court, where Ray pleaded guilty. He is scheduled for release when he’s 40 years old.

JIFF program participants (from left) Adarius Boltze, 16, Devion Thomas, 14, case mentor Grady Turner, Cordarius Lane, 15, and case mentor Troy Dotson prepare for a treetop rope course and zipline activity in Memphis on July 12, 2016.

Photo: Brandon Dill

Around the corner from juvenile court, in a former YMCA, I met half a dozen teenagers at JIFF — Juvenile Intervention & Faith-based Follow-up — which partners with the court’s Youth Services Bureau. “We love JIFF,” a JCMSC official told me, and it is easy to see why. It takes some of their most challenging kids and gives them job training and education, along with serious Bible study. JIFF also pairs kids with ex-juvenile offenders who act as mentors. The resulting bond is clear. When I asked the kids what they liked most about JIFF compared to juvenile court, the word I heard most was “love.”

The kids were not eager to talk about the detention center. They complained that it was cold, that staff played favorites, that the rule against talking made no sense. They especially hated being locked in their room for days at a time as punishment. But one teenager, a veteran of the system, said it was better than other jails he’d been in. At least he had his own room.

At JIFF, like at the detention center, all the kids were black. It reminded me of an old quote in the Tri-State Defender, the black alternative weekly in Memphis, from a county commissioner named Henri Brooks: “You would think that white children never get in trouble.”

Although few were eager to talk about it, the DOJ would never have come to Memphis were it not for Brooks. Elected in August 2006, months after Turner’s official retirement from the court, she immediately caused an uproar. Turner “ran that system down there on what I call ‘Plantation Politics,’” Brooks told the Defender, “and unless we update the court now, there will be no changes.” Brooks worked in juvenile court from 1976 to 1987. Speaking to me over the phone, she described the court’s operating assumption about black people: “There was something criminal in our genes. So we had to be controlled.”

A former state representative and chairwoman of the Tennessee Legislative Black Caucus, Brooks stirred controversy long before setting her sights on juvenile court. Her confrontational manner, while polarizing, was also likely one consequence of working in an environment where the existence of racism was aggressively denied. A 2005 bill she proposed to collect data on racial profiling was dismissed by an opponent as “a waste of money and a waste of time.” When Brooks warned that a 2004 seatbelt law could be used as a pretext to target black drivers, The Tennessean called her claim “amazing.”

But Brooks’s persona also eclipsed her most significant contributions. It was because of her that Tennessee became the first state to pass legislation enforcing Title VI of the Civil Rights Act. Yet she became more famous for a months-long controversy that broke out in 2001, after the speaker of the house confronted her for refusing to stand during the Pledge of Allegiance. “He talked to me like a master to a slave,” Brooks declared, later explaining that honoring the flag would be an affront to her ancestors. That year, a man burned her in effigy on the capitol steps.

Upon returning to Memphis, Brooks teamed up with another black commissioner, Deidre Malone, in a push to add a second judge to the juvenile court. The goal, Malone told The Commercial Appeal, was to address a generation of discrimination against black kids, in part perpetuated by Turner’s handpicked successor, Judge Curtis Person. “For years now, suburban courts all over the county have been allowed to establish diversion programs for white children committing the same offenses,” Malone said. Person responded angrily, writing that Brooks had a “personal mission to disrupt this court.” Others admitted that the court needed reform, but agreed that the problem was Brooks herself. One columnist noted that, while 75 percent of the court’s employees were black, “if you look at who holds the upper-level and highest-paying jobs, Brooks’s ‘plantation’ claim starts to make sense.”

“They acted like I was crazy,” Brooks recalled. Yet many Memphis residents agreed with her. In 2006, “my staff set up town hall meetings all over the city.” They met in churches and other venues, inviting parents of children who had been through juvenile court to speak. Attendees shared a litany of complaints, from endless delays to arbitrary decisions by referees. One mother described waiting two years for a hearing date in her child support case, only to have her case worker scold her “for not getting involved ‘with a better man,’” The gatherings were recorded and transcribed. Before long, “I think I had about seven or eight 10-inch binders” filled with grievances, Brooks said. The files became the basis for a Complaint and Request for Investigation, which she formally filed to the Civil Rights Division of the DOJ on Jan. 15, 2007.

While the DOJ considered the complaint, critics denounced Brooks for traveling to Washington on taxpayers’ dime — one letter to The Commercial Appeal called it “outrageous,” saying Brooks “should have paid for the trip out of her own funds.” To “defuse” the controversy, The Commercial Appeal reported, a local pastor collected donations from families “concerned about justice,” offering to cover the $1,000 in expenses. But Brooks would soon be vindicated. In August 2009, the DOJ announced it would investigate Shelby County Juvenile Court. A year and a half later, following repeated visits and a review of some 65,000 defendant files, the DOJ issued its announcement on the Memorandum of Agreement. By then, however, Brooks had been cut out of the process. The deal with the DOJ was signed by County Mayor Mark Luttrell and Person, a vocal skeptic of the department’s report.

Today, Brooks takes little pleasure in having been proven right by the DOJ’s investigation, which she says was too little too late. “It almost brought tears to my eyes to think of the others who had been before juvenile court before this even happened,” she says.

In June, the DOJ quietly released its seventh round of monitors’ reports on JCMSC. Racial disparities persisted and “physical restraints remain a problem,” Roush wrote, having last visited the detention facility in April. The Sheriff’s Department’s efforts to be more nuanced in documenting use of handcuffs have produced new problems. “Mechanical restraints are substantially undercounted,” Roush reported, urging “immediate action” to gather more accurate data.

But the most damning conclusion was perhaps the most predictable. Sheriff’s officers, it turns out, are not trained to work with kids. “An underlying assumption exists that there are no difference between juvenile and adult detention skills,” Roush wrote, calling the mindset “a fundamental problem.” Over email, a Sheriff’s Department spokesperson cited “specialized training” underway for new hires. He also addressed the $250,000 bulletproof glass: It was the result of a safety assessment requested by JCMSC, he said, implemented as part of the sheriff’s takeover of overall security.

The release of the monitors’ reports made no headlines this time. A few weeks later, on July 10, following the shooting deaths of Alton Sterling in Baton Rouge, Philando Castile in Minneapolis, and five police officers in Dallas, a small gathering took place outside the Civil Rights Museum. “The rally evolved into a protest march,” the Memphis Flyer reported, with 1,000 people marching through downtown to the I-40 bridge, which runs over the Mississippi River. Traffic was blocked for hours. Although the Memphis protests ended “peacefully … with no arrests,” they sparked rage among other city residents. Racist comments proliferated on the Black Lives Matter Memphis Facebook page. But others called it a moment of awakening. “Black lives matter,” a Commercial Appeal columnist wrote, comparing it to the declaration “I am a man.”

A few days later, after days of similar protests across the country, President Obama held a town hall, broadcast by ABC News. Attempting a conciliatory tone, he shared his own experiences with racism. “It’s not as bad as it used to be, but it’s still there,” he said.

But for some in the audience, the event fueled further anger. Erica Garner, whose father’s last words, “I can’t breathe,” became a rallying cry, was denied a chance to ask a question. Two years after the DOJ said it was looking into her father’s killing by police, she had no answers. Meanwhile, the man who had filmed his death faced jail time. Garner’s shouts were heard by audience members, journalists, and the president alike: “A black person has to yell to be heard?”

This article was reported in partnership with NextCity.

Top photo: JIFF program participants (from left) Markel Davis, 16, Devion Thomas, 14, Cordarius Lane, 15, Kerron Young, 17, Fredrick Jordan, 13, and Adarius Boltze, 16, are seen before taking part in a treetop rope course and zipline activity in Memphis on July 12, 2016.

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Kelle’s father had begun collecting the articles after James’s death in 1985, passing them on to his other children before he died. The first three pages of the album are about James’s funeral. The rest chronicle the long saga that ensued, the trial and subsequent appeals. The lurid details of James’s death appear again and again. “Each time I read through it,” Kelle told me, “it’s just more crazy and awful.”

Michael Ryan

Photo: Dept. of Correctional Services/AP

Kelle was one of several witnesses at the hearing who were feeling hopeful. The abolition bill, LB268, had been put forward by veteran state Sen. Ernie Chambers — an outspoken champion of social justice who introduced anti-death penalty legislation every year. But recently a coalition of conservatives had joined the fight, reframing the death penalty as a wasteful government program — expensive, ineffective, and contrary to Christian values. Leading the charge was Republican state Sen. Colby Coash, who described how as a college student he had once joined the bloodthirsty throngs outside Nebraska’s death chamber as an execution was carried out. Now he was a staunch fighter for abolition — and part of a growing trend that has seen transforming conservative attitudes about the death penalty.

In May 2015, two months after Kelle testified before lawmakers, the Nebraska legislature passed LB268, in a historic victory for abolitionists. In a 30-19 vote, lawmakers overrode a veto by Gov. Pete Ricketts, making Nebraska the first red state to end the death penalty in 40 years.

Yet the battle over Nebraska’s death penalty was far from over. In November, voters will have an opportunity to overturn LB268, thanks largely to the efforts — and considerable family fortune — of Gov. Ricketts. Denouncing the law as proof that “the legislature has lost touch with the citizens of Nebraska,” Ricketts poured his own money into repealing it, funding a petition drive launched under the banner Nebraskans for the Death Penalty. Last summer, the group attracted enough signatures to put the issue on the November 2016 ballot; in September, the Lincoln Journal Star reported that the group had raised more than $913,000 — “a third of it from Gov. Pete Ricketts and his father, Joe Ricketts,” the founder of TD Ameritrade. Last month the Nebraska Supreme Court heard oral arguments in a lawsuit alleging that the governor improperly downplayed his role driving the referendum in order to mask the “violation of his duty” to enforce state laws, even those with which he disagrees.

With the court set to rule on the lawsuit soon, anti-death penalty activists have launched Retain a Just Nebraska, organizing events throughout the state to convince voters to reject the death penalty in November. Sen. Coash has taken a leading role in the campaign, making his case in speeches and in the press. But as was the case in winning abolition in Nebraska, preserving it will also rely on murder victims’ families who have worked behind the scenes for years. For people like Kelle, this means continuing to revisit a deep-seated trauma over and over again, as part of the exhausting work of changing hearts and minds.

Speaking over the phone after a recent work shift, Kelle was intent on describing the looming referendum as an opportunity to educate Nebraskans about why the death penalty is wrong. But her fatigue was also clear. “It took me ten years to work through the anger and all the emotional aspects” of James’s death, she told me. It took several more years to find the courage to tell her story. After 12 years fighting to end the death penalty, “I was hoping that we would be done. Because it’s very traumatic to go over it every time.”

A housing unit at the Tecumseh State Correctional Institution in Tecumseh, Neb., May 11, 2015.

Photo: Nati Harnik/AP

The murder of James Thimm was shocking. Potential jurors for Michael Ryan’s 1986 trial were asked if they had “queasy stomachs.” One district judge who upheld the conviction called it “the most horrendous torture and sickening murder imaginable.” When she gives speeches, Kelle tries to let people know that “it’s a difficult story,” she said. “I use that as an option out.”

Thimm was raised by foster parents in Beatrice, Nebraska, where he was part of a devout Mennonite community. At some point in his late teens, he became attracted to the religious cult led by Ryan, eventually moving to the cult’s farm in Rulo, on the southeastern edge of the state. But Thimm began to question Ryan’s messianic claims; Ryan responded by declaring that Thimm was the devil and ordered him punished. Over three days, he was brutally tortured by Ryan and his followers. In August 1985, months later, Thimm’s body was discovered following a raid by law enforcement. He had broken bones and had been partially skinned. Buried next to him was the son of two cult members, 5-year-old Luke Stice, also killed by Ryan. At trial, cult members described how Thimm was “chained, whipped, shot in the fingers and forced to have sex with a goat.”

As Kelle’s family reeled from the trauma of her brother’s horrific murder, prosecutors pushed them to support the death penalty for Ryan. “We were told this was the only option” that would ensure he couldn’t hurt others, she said. “The state said he would be a danger to other people beyond James,” including prison guards. “And we didn’t want that.” Ryan was convicted and sentenced to die.

Kelle had never been comfortable with the death penalty. She was a nurse as well as a Mennonite and leaned more toward healing and forgiveness. Over time, she found herself reaching out to those who had participated in her brother’s murder. One of them had described himself as James’s “best friend,” yet admitted to torturing him, saying he’d been brainwashed. He was sentenced to 15 years. “I was really scared that he wouldn’t be better when he got out,” Kelle recalled. She feared he would remain in the grip of that same “false doctrine — we now call it radicalization.” She began visiting him in prison, trying to work with him to ensure that he would be ready for release, a decision she acknowledges is “difficult for people to understand.”

It was not until years later, after Kelle got a brief part-time job working at Nebraska’s Tecumseh Prison, that she was finally able to publicly disavow the death penalty. The prison was home to death row, where Ryan was incarcerated. She saw firsthand how bogus the state’s claim to her family had been — the prison’s security was more than enough to keep Ryan from harming employees. Kelle reached out to Nebraskans for Alternatives to the Death Penalty and eventually met other murder victims’ family members who were opposed to executions. “It was just so validating to know that they felt the same way,” she said.

Nebraska lawmakers debate whether to override Gov. Pete Ricketts’s veto of a death penalty repeal bill in Lincoln, Neb., May 27, 2015.

Photo: Nati Harnik/AP

This dynamic was on display in April of last year during the floor debate over the abolition bill. Lawmakers opposed to the bill described Thimm’s murder in graphic detail, casting him as a “victim who is unable” to speak for himself. Kelle was not present, but her fellow activist Elle Hansen, who has lost three loved ones to murder, was at the Capitol that day. “I already have plenty of PTSD,” Hansen told me. As she listened to Republican Sen. David Schnoor describe how Thimm had been sodomized with a shovel, she realized, “I could not sit and listen to that again.” From that point on, Hansen brought earbuds to hearings and played the Sara Bareilles song “Brave” whenever testimony became too graphic.

For those who have lost loved ones to murder, such experiences are “horribly re-traumatizing,” Hansen explained. Politicians exploit other people’s tragedies when “they are not their losses to speak about, to dictate about.” As she listened to lawmakers argue that day, Hansen felt increasingly unsettled by a meeting she had recently attended with the governor that she could not shake from her mind.

On April 7, 2015 — less than two months before the abolition bill passed — Hansen, Kelle, and a handful of other activists sat down with Gov. Ricketts in Lincoln. It was a chance to make their case for abolition. As Hansen recalls, she was telling the governor that if the state reinvested the money it spends on the death penalty toward crime prevention, the murder rate would decline, “and your likelihood of sitting here as a person whose lost a loved one to murder would go down considerably.” The governor’s response surprised her. “I actually have lost a loved one to murder,” he told Hansen. Ricketts had never revealed this part of his family’s past. Hansen went home and researched the case. The victim had been Ricketts’s first cousin, 22-year-old Ronna Anne Bremer, who went missing right before Christmas in 1988. A pregnant mother of two, Bremer’s death was confirmed only after an anonymous person mailed her skull to a sheriff’s office. The crime was never solved.

Hansen could certainly empathize with the family’s plight, but she was disturbed by Ricketts’s lack of transparency. As a relative of murder victims, she said, “I stood up … and I said, ‘Look, I have skin in the fight.’” She didn’t see why the governor, as an elected official, should not be just as forthcoming. Afterward, Hansen watched as Ricketts personally funded the referendum to repeal the abolition law. “I thought for sure … he was going to say something,” Hansen said. But months later, petitions were being turned in, “and he still didn’t say anything.”

Hansen got angry. She had already been disgusted by Ricketts’s unethical approach to executions, the way he had tried to import lethal injection drugs from foreign countries in violation of federal law. Now he was deploying his wealth and power to roll back the law she and others had fought so hard to win through the democratic process.

In September, Hansen met with Joe Duggan, a reporter for the Omaha World-Herald. She told him about the meeting with Ricketts. She also shared her own story, talking in detail about the three loved ones she’d lost to murder. Afterward, Hansen said, “I went to the bathroom in the coffee shop and I just bawled.”

Later, Duggan broke the story about the meeting and Ricketts’s cousin. The governor refused to comment, but a spokesperson issued a statement. “The Ricketts family continues to grieve Ronna’s tragic death, and pray that the person who took her life will be brought to justice.”

Nebraska Gov. Pete Ricketts during a tour of the Tecumseh State Correctional Institution in Tecumseh, Neb., May 19, 2015.

Photo: Nati Harnik/AP

It is impossible to know how deeply his cousin’s case has influenced Ricketts’s views on the death penalty. But the contrast of Ricketts’s personal war against abolition with the positions of Kelle and Hansen illustrates the different ways people react to a tragic loss. Twenty-nine murder victims’ families publicly expressed their support for the abolition bill last year — but there are surely 29 others who might disagree. Within Kelle’s own family, she said, there are those who would have liked to see Michael Ryan executed. But in the end they too experienced the disparity between how the death penalty works in theory and its cruel reality.

Michael Ryan died on May 24, 2015, after nearly 30 years on death row. Three days later, LB268 passed, abolishing the death penalty in Nebraska. As the fight over abolition drags on, proponents of capital punishment will have a harder time pointing to Ryan as proof that the death penalty works. For her part, Kelle will continue to carry her collection of articles and to urge the state to stop wasting money on a policy that punishes the very families the death penalty claims to heal. “Resources could be used for so many other things,” she said. “Victims’ rights, cold cases … I mean, just pick whatever you’d like. Anything but that.”

Top photo: Miriam Thimm Kelle testifies on a law proposal to change Nebraska’s death penalty to life imprisonment without parole, during a hearing before the Judiciary Committee in Lincoln, Neb., March 4, 2015.

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Instead, just before 4 p.m. on September 30, 2015, Gov. Mary Fallin — who had repeatedly denied relief for Glossip despite his vociferous claims of innocence — suddenly intervened, stopping the execution while making an embarrassing admission: The state did not have the correct execution drug in its possession. In a short statement, Fallin announced a temporary stay of 37 days to determine whether a drug named potassium acetate was “compliant” with the state’s lethal injection protocol.

How Oklahoma authorities could have discovered they were about to use the wrong drug so close to Glossip’s slated execution was completely unclear. Even more stunning was a revelation that came less than a week later: Oklahoma had already killed a prisoner using potassium acetate on January 15, 2015, in the execution of a man named Charles Warner. This was just four months before the state argued its case before the Supreme Court.

In the months since its execution fiasco put Oklahoma in the national spotlight, a grand jury has been investigating how things could have gone so egregiously wrong, in both the Warner execution and the run-up to Glossip’s aborted execution. Last week, a multi-county grand jury finally provided some answers, releasing its findings in a sweeping 106-page report.

The document is a scathing indictment of Oklahoma authorities. It details a stunning pattern of incompetence and disregard for protocol at every stage of the execution process. The report also reveals that officials lied to the public about key aspects of what happened.

The actions of the governor’s general counsel at the time, Steve Mullins, are particularly damning. Despite the state’s previous denials, the report confirms what local investigative journalists found last year, that Mullins pushed to proceed with Glossip’s execution even after discovering the prison had obtained the wrong drug. “Google it,” Mullins told the attorney general’s office over the phone about the drug potassium acetate, arguing that it was interchangeable with potassium chloride. Confronted with evidence that Charles Warner had been erroneously killed using potassium acetate, Mullins argued that stopping Glossip’s execution “would look bad for the state of Oklahoma,” because authorities would be forced to admit they had carried out an execution with the wrong drug.

Both Mullins and Department of Corrections Director Robert Patton have since resigned. Mullins’s behavior appears to have particularly offended the grand jury, which wrote, “It is unacceptable for the governor’s general counsel to so flippantly and recklessly disregard [the protocol] and the rights of Richard Glossip.”

Former Oklahoma Department of Corrections Director Robert Patton answers questions from reporters in Oklahoma City, Jan. 8, 2015.

Photo: Sue Ogrocki/AP

By Any Means Necessary

The details of the grand jury report underscore why Oklahoma’s drive to execute Richard Glossip launched an activist movement. His case perfectly illustrates the way death penalty states will rush to execute a prisoner despite persistent problems, whether it’s a dubious execution protocol or a questionable conviction. Sentenced to die for the 1997 murder of his boss, a man named Barry Van Treese, Glossip was found guilty almost entirely on the word of one person: a 19-year-old meth addict named Justin Sneed. Sneed, who worked with Glossip at a cheap motel in Oklahoma City, admitted to bludgeoning Van Treese with a baseball bat but claimed that Glossip made him do it. In exchange for his testimony, Sneed received a life sentence.

Last year, The Intercept investigated Glossip’s case, raising a number of serious problems and unanswered questions. In the run-up to Glossip’s scheduled execution last fall, his attorneys uncovered more and more evidence casting doubt on his conviction — including new witnesses who came forward to say that Sneed had openly admitted to killing Van Treese. In response, the state of Oklahoma dug in its heels, refusing to consider the evidence and even taking retaliatory action against some of the witnesses. In this sense, the findings of the grand jury are just another dimension of the state’s rush to execute Glossip by any means necessary.

While the push to execute Glossip despite his innocence claims has been largely driven by the Oklahoma attorney general — along with the Oklahoma City district attorney — the report makes clear that Attorney General Scott Pruitt was nevertheless unwilling to proceed with the execution when it was discovered that the state had ordered the wrong drug. When it comes to this mistake, the blame falls squarely on three people: Department of Corrections Director Robert Patton, who pawned off many of the duties assigned to him by Oklahoma’s protocol (a disregard for his duties that he also displayed while overseeing executions in Arizona, as BuzzFeed’s Chris McDaniel has reported); Department of Corrections General Counsel David Cincotta (who assumed the responsibilities Patton was supposed to carry out, and who is unnamed in the report); and the anonymous pharmacist from whom Cincotta ordered the drugs, in a process the report describes as “questionable at best.”

On September 30, the day of Glossip’s scheduled execution, the state’s official plan was to use a three-drug cocktail ending with a large dose of potassium chloride. Glossip had been informed of this plan, as had the press, yet no one ever verified that the correct drug had been purchased. According to the grand jury report, that day a prison staffer picked up the drugs from the pharmacist in a “sealed cardboard box” and took the box to the Oklahoma State Penitentiary in McAlester without inspecting or documenting its contents on a chain-of-custody form as required. At the prison, the vials of drugs — which were clearly labeled — were unpacked and photographed, just as they had been prior to the execution of Charles Warner earlier that year. On that occasion, apparently, no one noticed that the labels read “potassium acetate” rather than “potassium chloride.”

This time around, according to the grand jury report, a warden at the prison — referred to only as “Warden A” — spotted the discrepancy yet chose to say nothing. Under questioning by the grand jury, Warden A explained that he figured the drugs were interchangeable and that it simply wasn’t his job to know anything about the drugs being ordered or used. In fact, the state execution protocol makes clear that the warden had a duty to speak up: “If at any point any team member determines that any part of the execution process is not going according to procedure,” the protocol reads, “they shall advise the IV Team leader who shall immediately notify the director.”

Since the warden failed to alert anyone of his discovery, the doctor continued to prepare for the lethal injection. As he readied the syringes, he spotted the discrepancy, realizing one set of vials read “potassium acetate” rather than “potassium chloride.” Yet even that wasn’t enough to immediately stop the execution. According to the report, the doctor alerted prison officials while also assuring them that the two drugs were “medically interchangeable.” Cincotta told the doctor to carry on while he went to discuss the matter with Patton. He then contacted the pharmacist, who gave various explanations, saying he had ordered the acetate by mistake, while also saying that there just wasn’t any potassium chloride available.

The portions of the pharmacist’s testimony included in the grand jury report are particularly disturbing. While the pharmacist “denied intentionally sending the department potassium acetate,” his recollections suggest a stunning lack of attention to his job. “When I was looking through my ordering system, I looked for potassium,” the pharmacist said, “frankly not paying attention to whether it was acetate or chloride.” How this particular pharmacist was selected to provide the execution drugs is itself unsettling. Cincotta told the grand jury he made a series of phone calls, then simply chose “the first pharmacist that agreed to supply the department with the execution drugs.”

According to the report, it was during Cincotta’s September 30 phone call with the pharmacist that he realized that potassium acetate had been used for Warner’s execution. Cincotta checked photos of the drug vials from the Warner execution, then called Attorney General Pruitt and Steve Mullins. In compliance with the state’s protocol, which provided no alternative for potassium chloride, Pruitt’s office determined that the execution should be halted. Mullins, for his part, pushed for the execution to go forward. Gov. Fallin ultimately agreed to order the stay of Glossip’s execution, but not before a “heated discussion” over the language that would appear in the stay. Mullins did not want to include any mention that the “wrong drug” had been ordered, in part to avoid revealing that Warner had been killed using potassium acetate. But the attorney general’s response was firm: The wrong drug had been used “and there was no legal ambiguity” about it.

Anti-death penalty activists rally outside the U.S. Supreme Court in a final attempt to prevent the execution of Oklahoma inmate Richard Glossip on Sept. 29, 2015, in Washington, D.C.

Photo: Larry French/Getty Images

Incompetence Shrouded in Secrecy

At a time when death penalty states are struggling to carry out lethal injection amid legal challenges and drug shortages, the Oklahoma grand jury report is a serious wake-up call. It should be particularity sobering to states that have passed secrecy laws to shield the identity of those who sell drugs for execution. As the report makes clear, secrecy did much to contribute to the disaster in Oklahoma. “This investigation revealed that the paranoia of identifying participants clouded the department’s judgment and caused administrators to blatantly violate their own policies,” the grand jury concluded.

It is especially significant that the state’s new execution protocol — revised after the grisly botched execution of Clayton Lockett in 2014 — actually stripped away critical components that would have made the process more transparent, if not totally reliable. On the day of Charles Warner’s execution, for example, a corrections agent picked up the drugs from the pharmacist. Both individuals “signed a chain of custody form documenting delivery,” but did not bother to fill out “any information on the type or amount of items delivered.” The agent cited “privacy concerns,” while giving no specific explanation for these concerns. But part of the problem was the form itself, which was adopted as part of Oklahoma’s new protocol and “removed any and all references to the drugs it was intended to track.” Again the explanation was a need to conceal the identity of the pharmacist involved — a justification that made little sense, given that the pharmacist signed the form upon handing the drugs over to the corrections agent.

Senseless secrecy also corrupted the process of acquiring the drugs. “The surreptitious manner in which the department’s general counsel obtained the drugs appears largely based on confidentiality concerns,” the report found, directly linking it to Oklahoma’s secrecy law, which conceals the identity “of all persons who participate in or administer the execution process, and persons who supply the drugs, medical supplies, or medical equipment for the execution.” Moreover, to avoid “accidental disclosure” of drug suppliers’ identities, Oklahoma law also makes the purchase of execution drugs exempt from state purchasing laws — eliminating, among other things, requirements for written records.

In its recommendations, the grand jury calls for restoring internal documentation of the way drugs are ordered and obtained. “There should be no question about which drugs are being purchased or what is entering the Oklahoma State Penitentiary for purposes of executions.”

Yet in recommending that Oklahoma revise its execution procedures and consider approving potassium acetate for use, the report also suggests that the grand jury retains undue confidence in the state’s ability to carry out lethal injection. The grand jury also recommends that the state take advantage of a new law authorizing nitrogen gas for executions, saying that research suggests it would be “quick and seemingly painless.”

For now, all executions remain on hold in Oklahoma. While the state continues to tinker with its death machinery, advocates for Richard Glossip point to the grand jury report as yet another reason why his execution must not go forward, period. As Glossip’s defense attorney told reporters last week, “It is apparent that Oklahoma’s flawed system nearly caused the execution of an innocent man.”

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Somewhat buried in the flurry of headlines that followed was the fact that Pfizer has never been known to supply states with execution drugs. It is only after the company acquired a different drug company last year — Hospira Inc., which produced several drugs states have used or intend to use in executions — that Pfizer put such restrictions in place. This doesn’t make its policy any less important: “Pfizer has closed the circle,” said Arizona federal public defender Dale Baich, who litigates lethal injection challenges across the country. “The states can no longer obtain drugs from legitimate and legal sources.” But as Baich and others know too well, many states stopped seeking drugs from legitimate sources a long time ago. Today, most active death penalty states rely on anonymous compounding pharmacies, whose loose regulations vary wildly from state to state, making them dangerously unreliable compared to FDA approved drug companies when it comes to the efficacy of their products. Other states have broken federal law by importing illicit drugs from overseas. In driving states to the underground market, Pfizer’s announcement merely makes official what has already been happening for years.

Take Texas, which has carried out six executions so far this year and has eight more scheduled through the fall. There, prison officials were decidedly unfazed by the news. “It’s not anticipated that Pfizer’s decision will have an impact on the agency’s current ability to carry out executions,” Texas Department of Criminal Justice spokesperson Jason Clark wrote in an email to The Intercept. So where does Texas get its drugs if not through companies like Pfizer? Today, we’re not allowed to know the answer to that question. “State law prevents the disclosure of the identity of the supplier of execution drugs,” Clark wrote, saying only that they come from a “licensed pharmacy that has the ability to compound.” The official rationale for the policy — which became effective last September — is that secrecy is the only guarantee of safety for those companies still willing to supply drugs for executions. “Pharmacies don’t have security details,” Deputy Texas Solicitor General Matthew Frederick told an appellate court earlier this month, opposing a legal challenge to the law. “Their only protection is anonymity. Once you take that away … there’s nothing they can do to protect themselves.”

The problem with such ominous rhetoric is that there is virtually no evidence to back it up. For years, suppliers of lethal injection drugs in Texas could be identified via open records requests, without incident. But in the fall of 2013, a local company, Woodlands Compounding Pharmacy, was revealed to have provided pentobarbital for executions, prompting the owner to complain about “hate mail” and unwanted media attention — and to ask for its drugs back. Some months later, the Texas Department of Public Safety released a threat assessment, warning that pharmacies like Woodlands are a “soft target for violent attacks” and that “publicly linking a pharmacy or other drug supplier to the production of controlled substances to be used in executions presents a substantial threat of physical harm … and should be avoided to the greatest extent possible.” As the Texas Observer reported, the only evidence for such threats offered by Texas officials included a strongly worded letter to Woodlands and a random blog post featuring an image of an exploding head.

Today, lethal injection secrecy statutes exist in some dozen states and counting, under the same pretense of security. “The states have never offered any proof that a manufacturer has been harassed,” said Baich. Yet the claim has become entrenched. In Mississippi, Attorney General Jim Hood recently praised lawmakers for passing a secrecy bill drafted by his office, stressing the need for drug suppliers to “be free from the intimidation and strong-arm tactics of some anti-death penalty activists.”

For years, lawyers and journalists have argued that the real purpose of such laws is to block scrutiny of states’ execution protocols. In effect, they have also “prevented manufacturers from learning how states have gotten a hold of the pharmaceutical products they have been using in executions,” said Robert Dunham of the Death Penalty Information Center. Pfizer’s tight new restrictions, Dunham said, are “designed to counter” such secrecy. With Pfizer’s announcement last week, the most significant challenge will not be overcoming state secrecy to ensure that major drug corporations can keep such promises. The bigger problem is how to hold states accountable to the Constitution as they do business with faceless companies that have no ethical qualms about selling execution drugs. “As compounding pharmacies do this in the dark,” said Maya Foa of the human rights group Reprieve, which has led the effort to convince the pharmaceutical industry to block its drugs for use in executions, “it is just going to a create more of a mess — potentially, more botched executions.”

Thiopental Sodium on a tray, Thiopental Sodium is used as a barbiturate general anesthetic.

Photo: UIG/Getty Images

Agonizing Deaths

The image of abolitionist bullies threatening drug suppliers — or as Supreme Court Justice Samuel Alito put it last year, waging “guerrilla warfare against the death penalty” — is a relatively new invention. Its origin can be traced back to the drug shortages that first set the stage for the current upheaval around lethal injection — and which inspired perhaps the country’s most far-reaching lethal injection secrecy law, in Georgia.

In August 2009, Hospira Inc. ceased production of the anesthetic sodium thiopental (a key ingredient in what was then the standard three-drug protocol in use across the country), after one of its suppliers stopped making a crucial ingredient. At first, Hospira planned to move its production to Italy, but after Reprieve successfully pressured the Italian government to block the export of such drugs for the use of U.S. executions, the company stopped manufacturing the drug altogether.

With their go-to supplier of sodium thiopental no longer an option, death penalty states started seeking other sources — and before long, some disturbing consequences emerged. In 2010, just days after the Arizona Republic revealed that local prison officials had imported sodium thiopental from overseas, Dale Baich witnessed the death of a client named Jeffrey Landrigan, whose execution appeared to go awry. While it was not the dramatic two-hour ordeal later suffered by a different client, Joseph Wood, in 2015, Landrigan’s death was alarming for one lurid detail: He died with his eyes open. Baich would later learn that the sodium thiopental used to kill Landrigan had almost certainly expired. This meant that he was not properly anesthetized when the second drug, a paralytic, kicked in. The inescapable conclusion: Landrigan was conscious and frozen in place as the third drug, potassium chloride, seeped into his veins and stopped his heart — an “agonizing” way to die, according to one anesthesiologist.

The same batch of sodium thiopental used to kill Landrigan in Arizona was also linked to two executions in Georgia around that time — Brandon Rhode in September 2010 and Emmanuel Hammond in January 2011. Both men died like Landrigan, with their eyes open. In an interview for an article I wrote for The Nation in 2011, Hammond’s lawyer said her client’s death had appeared painful — “like nothing I have ever seen before.”

Because Georgia’s open records law at the time allowed the disclosure of the state’s source of lethal injection drugs, Hammond’s lawyers were able to trace the sodium thiopental used to kill him to a strange Britain-based pharmaceutical wholesaler named Dream Pharma Ltd. As I wrote at the time, its headquarters were “a rented space in the back of a driving school in a West London suburb. Its bare-bones website boasts that it can provide ‘discontinued’ and ‘hard to find’ drugs to customers, promising that ‘confidentiality will remain paramount.’” Not long after news broke of the state’s sketchy execution source, the DEA seized Georgia’s supply of sodium thiopental, citing “questions about the way the drugs were imported.”

Following the DEA raid, two things happened quickly. First, Georgia hastily adopted a new drug to replace sodium thiopental: the barbiturate pentobarbital, over the objections of a Danish company named Lundbeck Inc., which warned the state that the drug was not meant for such use. Georgia ignored Lundbeck’s warnings, using the pentobarbital to execute Roy Blankenship, who “jerked his head,” lunged “with his mouth agape” and whose eyes “never closed,” according to one AP reporter in June 2011.

Second, on the urging of the Georgia Department of Corrections, lawmakers drafted a bill to block the release of any information about executions under the Open Records Act. Georgia’s Lethal Injection Secrecy Act, passed in March 2013, classifies as a “confidential state secret” the identity of “any person or entity who participates in or administers the execution of a death sentence” or who “manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence.”

Apart from its assault on transparency, Georgia’s law now meant that condemned prisoners were not entitled to know the source of the drugs that would be used to kill them. This “created a catch-22 for any death-row inmate seeking to challenge Georgia’s lethal injection protocols,” as legal reporter Andrew Cohen wrote at the time. Without any information about where the state procured its drugs, prisoners could not fight their executions on Eighth Amendment grounds — even as they had ample reason to fear a cruel and unusual death. Nevertheless, in 2014, the Georgia Supreme Court upheld the new law, calling the need for secrecy “obvious,” in order to avoid the “risk of harassment or some other form of retaliation” for those involved in executions — despite any lack of evidence that such risks existed.

As secrecy laws have continued to pass, most recently, Gov. Terry McAuliffe of Virginia took a bizarre stance on the matter, urging lawmakers to reject a bill that would make the electric chair the state’s default mode of execution if drugs cannot be found for lethal injection, while pushing to conceal the identity of execution drug suppliers. Absent such a law, McAuliffe argued, “manufacturers will not do business in Virginia if their identities are to be revealed.”

The Pfizer company logo April 27, 2016 in New York.

Photo: Don Emmert/AFP/Getty Images

Product Misuse

By the time Pfizer made its decision to block drugs for executions, Foa had already worked with some two dozen other drug companies, from the U.S. to Europe, to find a way to cut off the supplies for U.S. executions. Contrary to the image of aggressive abolitionists, there was no ambush involved. “From the moment it purchased Hospira, Pfizer wanted a solution,” Foa said.

The first company Foa worked with was Lundbeck — the drug manufacturer who tried to prevent the state of Georgia from using its drugs to kill Roy Blankenship in 2011. In an email to The Intercept, Lundbeck’s communications director, Anders Schroll, recalled what happened. Reprieve contacted Lundbeck soon after the company discovered its “product misuse” in 2011. “We had a constructive dialogue,” Schroll said. This included “a couple of face-to-face meetings in Copenhagen and an active dialogue over the phone and via mail,” Schroll wrote. The company had suffered a wave of bad press over its drugs being used for executions, including an open letter published in The Lancet, in which a large number of doctors said they were “appalled at the inaction of Lundbeck” to prevent pentobarbital from being used in executions. Foa recalls the company acting in good faith — and Schroll said that it was a challenge to find “a way to restrict distribution while continuing to make it available for the small patient population who need it for emergency situations related to seizures. Striking that delicate balance wasn’t easy,” he wrote, “but all things considered, it was a very short time from learning about the misuse of our product to revamping the entire distribution system — just five months — and we did something no other company had achieved until that point, which was to cut off supply to prisons.”

Pfizer did not return multiple emails about its own process. But Foa describes it as similarly collaborative, not antagonistic, as well as much easier than the process with Lundbeck. As the industry has moved toward making such restrictions the industry standard, “the terrain is much more mapped out.”

In the wake of Pfizer’s announcement, the state of the death penalty across the country remains in disarray. As some states have gone backward, passing laws to bring back firing squads and electric chairs, those that insist on keeping lethal injection have proven shameless in their quest. Long after Georgia’s Dream Pharma debacle of 2011, the past few years have shown the absurd (and illegal) sources states have continued to find for their drugs — from “the salesman in India with no pharmaceutical background” who sold drugs to at least four states in violation of federal law, as BuzzFeed reported last fall, to a local hospital in Louisiana that inadvertently sent prison officials 20 vials of hydromorphone in 2014. (“Had we known of the real use,” one official told local news site The Lens, “we never would have done it.”)

Email records obtained by journalists have revealed “a disturbing flippancy” about the process, as reporter Katie Fretland reported in 2014, describing how Oklahoma officials joked in 2011 that, in exchange for helping Texas obtain elusive pentobarbital, they might be able to get “much sought-after 50-yard-line tickets to the Red River Rivalry, a football game between the University of Oklahoma and the University of Texas.” In that state, whose execution protocol was upheld by the Supreme Court just last year, officials have exhibited shocking levels of incompetence and dishonesty when it comes to carrying it out.

Such revelations continue. Less than a week before Pfizer’s big announcement, the ACLU of Northern California released 12,000 pages of records from the California Department of Correction and Rehabilitation (CDCR). Through a similar records request years ago, the local ACLU chapter had discovered that California, too, had sought drugs high and low, including from local hospitals, only to end up with part of Arizona’s illegal shipment of drugs from Dream Pharma. (“You guys in AZ are life savers,” one California official wrote over email in 2010.) Reading the most recent batch of records is like bad déjà vu. One set of documents shows that CDCR yet again contemplated purchasing drugs from a pharmacy in the U.K. “We could do it again …” reads an email message from a consultant, an apparent reference to the disastrous purchase from Dream Pharma.

The documents also revealed a chilling attitude about recent botched executions. Criticizing the “big hoopla” surrounding the 2014 death of Dennis McGuire in Ohio — who writhed and gasped for air, according to witnesses — CDCR attorney Kelly McClease dismissed that ghastly spectacle as “snoring.”

Over email, Ana Zamora, criminal justice policy director for the ACLU of Northern California, said Pfizer’s decision does not stand to affect the death penalty there, since the company “does not manufacture any of the four drugs authorized for use” in the state. “The Pfizer decision, however, increases the likelihood that the CDCR will turn to troubling and costly sources to acquire lethal injection drugs,” she said. And the newly released records show that officials have considered purchasing drugs from “online pharmacies that boast offering cheap drugs without a prescription.” What’s more, records reveal that contrary to the CDCR’s public estimate that such drugs would cost $4,193 per execution, the department appears well aware that “a particular compounding pharmacy” would charge “between $133,080 and $150,000” per execution.

Although California has not carried out an execution in more than 10 years, there are active efforts underway to restart the state’s death machinery. And while there is no secrecy law in California, history suggests it is only a matter of time before someone decides such legislation is necessary. Zamara’s primary concern, she said, is that California has not learned any lessons from recent botched executions in other states. “If the CDCR acquires lethal injection drugs from sources that cannot ensure proper dosage, sterility, potency,” she said, “this will greatly increase the risk that an execution could go terribly wrong in California too.”

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A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing. While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention. For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted. Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions. Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.” Many would like to see it repealed.

If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood. AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism. But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon. After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton. In the long term, it would help pave the way to one of the worst laws of his presidency.

The story that sets the stage for AEDPA can be partly told through White House memos from the time, a trove of which were released in 2014. Buried among hundreds of thousands of digital records housed in the Clinton Digital Library are previously confidential documents that shine light on Clinton’s criminal justice strategies in the mid-90s, yet have been largely overlooked.

One memo reveals a White House weighing its options in the weeks after the “Republican Revolution.” Dated November 22, 1994, it was written by top Department of Justice lawyer Ron Klain, who sent it to his boss as well as members of President Clinton’s inner circle, including Bruce Reed (the operative behind the famed pledge to “end welfare as we know it”) and senior White House adviser Rahm Emanuel. The memo was titled “Crime Bill ‘Redux.’”

Ronald A. Klain, chief of staff to Attorney General Janet Reno, October 1994.

Photo: The LIFE Picture Collection/Getty

“By now, we are all aware of the Republican proposal to revisit last year’s hard won crime bill,” Klain wrote in his memo. Called the Taking Back Our Streets Act, the GOP bill was designed to dismantle the crime bill’s signature features — in particular, a community policing project known as the COPS program — while going even further than the president had in his sweeping legislation. “The Republicans’ goal here is purely political and tactical,” Klain wrote. “To take away the clearest, best ‘Clinton achievement’ on crime, and to deprive the president of the opportunity to award communities all over the country their share of the 100,000 new police officers.”

The GOP also aimed to kill off the crime bill’s prevention programs, but Klain was more concerned about COPS — no doubt in part because the 100,000 police figure had been his idea. A young lawyer described by the New Republic as having “chillingly good political skills,” Klain had been working to pass crime legislation since he was in his 20s, as the “youngest ever chief counsel to the Senate Judiciary Committee.” Under Sen. Joe Biden, Klain had drafted unsuccessful precursors to the 1994 crime bill. Now Klain was being credited as the man who successfully steered its passage.

Klain saw “only two possible outcomes” to the Republican maneuvering. “The president will have to sign the bill that Congress sends him, or veto it.” While the former would “outrage our core constituency,” he wrote, the latter posed a potentially bigger threat: “We cannot needlessly give the GOP the opportunity to say that the president is vetoing a ‘tough on crime’ bill for ‘soft on crime’ reasons.”

Fear of looking “soft on crime” on the heels of the most extreme law-and-order legislation in U.S. history might have seemed irrational. The 1994 crime bill broadened “three strikes,” poured money into prison building, and vastly expanded the death penalty. But the new power struggle with Congress meant the White House wasn’t taking any chances.

Klain had a solution. Clinton should “welcome Republican efforts to build on last year’s crime bill,” he wrote, by folding them into new Democratic legislation that protected the administration’s top priorities. If it passed, it would be an additional “win” for the White House. Klain attached to his memo “a very, very rough outline of a possible new crime bill,” along with a chart comparing it both to the 1994 crime bill and the new GOP bill. Klain proposed including a $1 billion cut in prevention programs (reallocating $700 million to new juvenile prisons), more cops in schools, and “tougher truth in sentencing.” In some areas, his outline was harsher than the GOP legislation — “broaden[ing] the range of offenses for which juveniles may be tried as adults” and “enhanc[ing] penalties for lesser drug crimes.” In other areas, like the “deportation of criminal aliens,” it simply adopted the Republican line.

Finally, the proposal reintroduced an idea favored both by Clinton and his foes in Congress: “habeas corpus reform,” previously cut from the crime bill and now part of the Taking Back Our Streets Act. Sometimes called the “Great Writ” for its treasured place in constitutional law, habeas corpus referred to the long-standing right of prisoners to challenge their incarceration in court. For the federal courts, this meant reviewing state convictions for constitutional violations, a process that took years. In the zero-tolerance climate of the ’80s and ’90s, the concept of habeas corpus had met with increasing impatience; critics accused people on death row of gaming the system, filing “appeal after appeal” just to stay alive. “In brief,” Klain wrote, “these reforms would limit death row inmates to a single habeas petition — to be filed within strict time limits — while providing such inmates with competent counsel to assist in preparing this single filing.” While the Republican version of habeas reform made no guarantee on the right to counsel, both sides could agree on the need to speed up the death penalty.

After the Oklahoma City bombing, Clinton appeared on “60 Minutes” calling for the perpetrator to be executed.

Klain’s imagined crime bill sequel never came to pass — he left the DOJ early the next year. But his top priority lived on. In February 1995, as Clinton threatened to veto the looming GOP bill over the COPS program, White House staff received talking points titled “DEBUNKING THE MYTHS: THE 100,000 COPS PROGRAM WORKS!!!” In the meantime, others considered the habeas provisions in the Taking Back Our Streets Act. The administration seemed poised to fight for competent counsel; one memo from February 1995 is particularly notable. Apart from providing for lawyers at the post-conviction stage, it stressed that habeas reform “must provide for competent trial counsel,” since “excessive delays in capital cases result not only from manipulation of habeas corpus procedures, but also from a high rate of constitutional error in capital trials.” This point tended to be aggressively ignored in the calls to speed up the death penalty, which usually blamed prisoners for abusing their rights.

As the GOP bill continued to advance that spring, the White House was planning PR events to blunt its political impact. “Our strategy on crime has always been to associate ourselves with police officers,” Rahm Emanuel and Bruce Reed wrote to Clinton in March, urging him to “bolster this image.” But then, suddenly, everything changed.

On the morning of April 19, 1995, a massive explosion rocked the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people and injuring hundreds more. On the ground days later, Clinton gave a powerful eulogy — PR events were no longer needed. It was now up to the president to keep Americans safe, not just from criminals, but from terrorists. Dropping its work on the GOP crime bill, Congress vowed to pass a new counterterrorism bill by Memorial Day.

But at least one key criminal justice priority survived. On the Sunday after the Oklahoma City bombing, Clinton appeared on 60 Minutes, calling for the perpetrator to be executed. The 1994 crime bill had expanded the death penalty “for purposes such as this,” he said. “If this is not a crime for which capital punishment is called, I don’t know what is.” Asked by co-host Ed Bradley how he could deliver on his promise that “justice will be certain, swift and severe,” Clinton called for speeding up death penalty appeals. “Congress has the opportunity this year to reform the habeas corpus proceedings,” he said. “And I hope that they will do so.”

If it was unclear how proposals to shorten appeals for state prisoners related to federal terror cases, prosecutors nonetheless applauded Clinton’s remarks. In a letter to the White House, a bipartisan group of state attorneys general warned that failure to overhaul habeas corpus would endlessly delay justice for “such acts of senseless violence” and undermine “the expression of our level of opprobrium as a nation for acts of terrorism.”

Almost a year later, on April 24, 1996, a signing ceremony took place on the South Lawn of the White House. “In a presidential election year,” the AP reported, “it was an opportunity for a warm display of bipartisanship on a sunny, spring day.” The New York Times described “the Marine band playing and American flags whipping in the breeze.”

“We send a loud, clear message today all over the world, in your names,” the president told families in attendance whose loved ones had died in Oklahoma City. “America will never surrender to terror.” Then he signed the Antiterrorism and Effective Death Penalty Act.

A calendar hangs inside a prisoner’s cell on death row at the Georgia Diagnostic and Classification Prison, Dec. 1, 2015, in Jackson, Ga.

Photo: David Goldman/AP

Twenty years later, AEDPA has long been eclipsed as a counterterrorism measure by the USA Patriot Act, which was built on its foundations. As crime legislation, it remains relatively unknown, even amid renewed debate over Clinton’s other policies. But for people in prison, its legacy has been sweeping and harsh. For all the rhetoric that accompanied the signing of AEDPA, it has been most severely felt by state prisoners with no connection to terrorism — and especially those who insist they are innocent.

AEDPA is most notorious for its impact on death penalty cases. “I suspect that there may well have been innocent people who were executed because of the absence of habeas corpus,” said former D.C. Circuit Judge Abner Mikva, a Carter appointee who later served as White House counsel in 1994 and 1995. For Mikva, who turned 90 this year, his failure to stop so-called habeas reform is one of the major regrets of his career. He still recalls his time as a young law clerk for U.S. Supreme Court Justice Sherman Minton in the 1950s; when habeas petitions would reach his desk, Mikva said, “I saw how complicated it was for him to review these handwritten records — which is what they had at the time — and how uncertain some of the convictions were.”

Abner Mikva, a former D.C. circuit judge who served as White House counsel, attending a ceremony at the Supreme Court, May 8, 1995.

Photo: The LIFE Images Collection/Getty

“I was writing a bunch of letters trying to get help,” he recalled, when under AEDPA, “the situation became more dire.” Amid the confusion over how the law applied to old cases — for prisoners like Deskovic, who had exhausted his state appeals, the one-year countdown began upon enactment of AEDPA — his lawyer missed the April 24, 1997, deadline by four days. The district attorney argued that his petition should be dismissed on these grounds. The courts agreed (including the 2nd Circuit Court of Appeals, whose decision was co-written by Sonia Sotomayor). Deskovic spent six more years in prison before the Innocence Project convinced the new district attorney to test DNA in his case. It matched someone else and his conviction was vacated.

Deskovic was lucky to have an attorney at all. “I don’t think people realize that [non-death row] inmates are not provided with attorneys in federal court,” Deskovic said. Although AEDPA contained no promise of competent counsel in the end, people on death row are entitled to post-conviction representation. Others are often left to file pro se petitions, essentially representing themselves. “So now you have poor people who are often poorly educated — certainly not lawyers, certainly not having formal legal education — wading through this procedural thicket, and they can very easily get tripped up. And federal courts think nothing of saying, ‘Oh, you didn’t follow this rule? This procedure? We’re not looking at your case anymore.’”

Even more profound than the strict limits and deadlines it imposed in individual cases is the way AEDPA altered the balance of power between state and federal courts, favoring finality over fairness. Under AEDPA, federal courts may only grant habeas relief if a state court ran afoul of “clearly established federal law,” or if its ruling was rooted in “an unreasonable determination of the facts in light of the evidence presented.” In the oblique language of the law, this drastically raised the bar for overturning state convictions. Federal judges have been “pretty much shut out … from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred,” 9th Circuit Court of Appeals Judge Alex Kozinski wrote in the Georgetown Law Journal last year. “We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”

In the New York Times Magazine last summer, Emily Bazelon cited Kozinski as one of a growing number of critics who have called for the repeal of AEDPA. Federal judges “are now raising alarm that the law is systematically failing to provide the necessary safeguards against miscarriages of justice,” she wrote. There are many examples of the way AEDPA has been “cruel” and responsible for “much human suffering,” according to Kozinski. But Deskovic, who now runs a foundation to help the wrongfully convicted, points to the case of a man named Lorenzo Johnson as particularly egregious.

Johnson was convicted in Pennsylvania for his involvement in a 1995 murder. The state never claimed he was the triggerman or even that he had a direct role in the killing, yet at 22 Johnson was sentenced to mandatory life without parole. In October 2011, the 3rd Circuit Court of Appeals overturned his conviction, finding that, while Johnson might have been present at the scene, the claim that he intended to commit murder was “mere speculation” by the state. After 16 years behind bars, Johnson walked out of prison. With Deskovic’s help, Johnson found a job, reunited with his family, and pursued public speaking.

But in 2012, the U.S. Supreme Court reversed the 3rd Circuit’s ruling, holding that it had “failed to afford due respect to the role of the jury and the state courts of Pennsylvania.” Although the federal court had found insufficient evidence to keep Johnson in prison, the “state court of last review” disagreed — “and that determination in turn is entitled to considerable deference under AEDPA.” After four months of freedom, Johnson got a phone call from his lawyer telling him he had to go back to prison. “It was surreal and horrifying,” said Deskovic, who drove him back to Pennsylvania from New York. Along the way, Johnson made calls to friends and family, struggling to explain. To Deskovic, it was a grotesque ruling by the Supreme Court — a “rush to repudiate a line of reasoning by the lower federal court,” rather than an interest in justice. Johnson “shouldn’t have had to be returned back to prison on a technicality.”

Today Johnson writes articles behind bars that are published at the Huffington Post. In a recent article titled “Clinton’s Other Terrible Crime Bill,” he described the lasting impact of AEDPA. “Although I’m living through a nightmare, I’m also just one of many others,” he wrote, pointing out the record number of exonerations in recent years. “But these numbers have not even scratched the surface; there are many other wrongfully convicted people still in prison.”

President Bill Clinton sits between House Speaker Newt Gingrich, left, and Senate Majority Leader Bob Dole, right, during an April 26, 1995, meeting at the White House.

Photo: Luke Frazza/AFP/Getty Images

In the recent debates about crime policy from the ’90s, a common Clinton defense has been one of unintended consequences, in which bad laws were born of the best intentions. But White House memos in the run-up to AEDPA make clear that Clinton had been thoroughly warned about its dangers. What’s more, news articles from the era betray the extent to which criminal justice policies were being crafted with political strategy in mind, rather than as serious solutions to crime. “It’s been the most careful political calculation,” former Deputy Attorney General Philip Heymann told the New York Times after leaving the DOJ in 1994 — “with absolutely sublime indifference to the real nature of the problem.”

Indeed, with crime rates falling in the mid-90s, even the landmark features of the 1994 crime bill largely boiled down to posturing. In the New Republic, a former operative for Clinton’s 1992 campaign recalled the origins of the $8.8 billion COPS program that Joe Biden defends to this day: “Clinton had a big crime speech coming up. We had no idea how many extra cops would be a good thing. … Bruce Reed and I called [Ron Klain] from Little Rock. He said, ‘Would 100,000 be enough?’” Not surprisingly, in contrast to Biden’s boasting, the COPS program failed to deliver on its promises.

By the time AEDPA passed, Clinton had learned how effectively he could undercut the Republicans by co-opting their ideas on crime. Republicans were outraged. “We say habeas corpus, they say sure. … We say prisons; they say sure,” one frustrated GOP source complained to the New York Times as the 1996 election against Bob Dole approached. But critics pointed out that the costs of such a winning political strategy were far too high. “I have absolutely no faith that constitutional principles matter to this president when they emerge in a criminal-justice context,” American Civil Liberties Union legislative director Laura W. Murphy told the Times. AEDPA marked “a total collapse” on the issue.

In the end, the final question for Clinton when it came to gutting habeas corpus was how to spin it.

In an email to The Intercept, Klain defended the 1994 memo in which he sought to outmaneuver the GOP by proposing a tough new Democratic crime bill. “Clearly we were trying hard to stave off draconian legislation being advanced by the new Republican majority,” he wrote. As for habeas corpus, he drew a clear distinction between what the Democrats advanced and what ended up in AEDPA. “We explored a number of strategies to prevent their plans to gut appeal rights without providing adequate counsel,” he said. “The GOP version passed after I left.”

It is true that many Democrats fought against the version of habeas reform that passed as part of AEDPA. Among them was Joe Biden, who for years had hoped to pass a habeas reform law of his own. But his proposed legislation, most recently aimed at the 1994 crime bill, had been drafted with state prisoners in mind, meaning that “the Biden bill would not affect the case of Timothy McVeigh,” as Bruce Reed wrote to Clinton on May 3, 1995, two weeks after the bombing. “We should go along with some form of limits on appeals by federal prisoners,” Reed advised. In the margins, Clinton appears to have written “agree.”

Two days later, White House lawyer Chris Cerf sent a memo to his colleagues comparing the dueling versions of habeas reform before Congress. He analyzed their legal implications and their chances of passing. Biden’s bill, which included myriad provisions on the right to counsel, was “dead on arrival.” A measure brought forward by Senate Judiciary Chair Orrin Hatch as part of the terrorism bill introduced by Bob Dole was somewhat “less radical” than other GOP versions, but still “a very significant incursion into traditional habeas law.” Cerf raised particular caution over provisions that required higher standards of deference to state courts and made it harder for federal courts to grant evidentiary hearings. “For all practical purposes,” he wrote, these two combined “would eliminate federal habeas hearings.”

The White House should accept the Hatch bill on a set of strict conditions, Cerf wrote. Among them: the deletion of those troubling provisions and the addition of language to ensure “competent counsel at all phases of a capital case.” If Hatch refused, Cerf wrote, the White House should reject his proposal and instead aggressively try to “unbundle habeas from the counterterrorism bill,” saving the fight for another day. But he was not optimistic. “My sense … is that the habeas train is coming down the track and is unstoppable,” Cerf wrote, “especially after the president’s comments on 60 Minutes.” In an underlined sentence, he warned, “We do not want to put the president in the position of having to accept highly objectionable habeas provisions merely because they are tied to the counterterrorism bill.”

Indeed, while it would take almost a year to pass AEDPA, Clinton’s immediate call to speed up the death penalty days after the bombing had rigged the game from the start. As Democrats began threatening to throw gun control amendments at Dole’s terror bill to force the removal of habeas reform, Hatch seized on Clinton’s own rhetoric, declaring, “The American people do not want to witness the spectacle of these terrorists abusing our judicial system … by filing appeal after meritless appeal.” For a moment, Clinton stood his ground. In late May 1995, a month after the attack, he sent a letter to Dole arguing against passing habeas reform as part of the terrorism bill and stressing the need to protect “the historic right to meaningful federal review.” But less than two weeks later, on Larry King Live, Clinton suddenly reversed course. Habeas reform “ought to be done in the context of this terrorism legislation,” he said, “so that it would apply to any prosecutions brought against anyone indicted in Oklahoma.”

Inside the White House, Abner Mikva believed he knew what had happened. In early June 1995, just days after Clinton wrote to Dole, a delegation from Oklahoma City arrived in Washington. It included survivors of the bombing as well as grieving family members. They called themselves “the habeas group.” Convinced it would result in swifter justice for the terrorist attack, they were lobbying for streamlining death row appeals. Mikva and his staff had been trying at the time to convince the president to support a more cautious version of habeas reform put forward by the NAACP Legal Defense Fund. But after the visit, Mikva recalls, all bets were off. “He wrote on my memo, ‘No. Oklahoma.’ And that was the end of our efforts.”

Yet, for all the political gamesmanship that paved the way to AEDPA, Mikva places the ultimate blame for the erosion of habeas corpus on the judiciary — particularly conservative U.S. Supreme Court Justice William Rehnquist. Rehnquist had long railed against the drawn-out appeals that delayed executions for making “a mockery of our criminal justice system.” Upon assuming the Supreme Court bench, in 1988, Rehnquist formed the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, naming retired Justice Lewis Powell Jr. as its head. Powell “came up with some very draconian changes to habeas,” Mikva recalled, “which were basically the substance of what ultimately passed.”

Federal judges at the time were alarmed by the recommendations. In 1989, at a Senate Judiciary hearing convened by Joe Biden, Judge Stephen Reinhardt of the 9th Circuit decried Powell’s report. “Finality and speed are the presumed objectives,” Reinhardt testified. “They seem to outweigh the concerns for fairness, justice, due process, and compliance with the constitution.” Citing his experiences with prosecutors who withheld evidence in capital cases — violations that can take years to discover — Reinhardt posed the question: “What can I do if someone comes in with affidavits and proof asking for relief from me when a man is about to be executed and the statute says I have no jurisdiction or authority to grant a stay or any habeas relief?”

Yet habeas reform efforts continued along parallel tracks in the legislative and judicial branches. By the time AEDPA passed, a series of Supreme Court rulings had already made it more difficult to challenge state convictions. (Indeed, in one 1995 White House memo to Clinton, Bruce Reed noted that Republicans had ultimately dropped habeas reform from the 1994 crime bill over fears that “a Democratic crime bill would undermine recent Supreme Court decisions that have strengthened prosecutors’ hands.”) To some legal scholars at the time, this made AEDPA mostly symbolic — an attempt by lawmakers to take credit for what the judiciary had already done.

In Congress, however, others saw the dangers posed by AEDPA. On April 17, 1996, during the final round of fighting in the Senate, New York Democrat Daniel Patrick Moynihan warned that the provisions curtailing habeas corpus would “introduce a virus that will surely spread throughout our system of laws.” One of just eight senators to vote against the law — Biden was not among them — Moynihan read from a letter to Clinton sent by four attorneys general. They urged him to “communicate to the Congress your resolve, and your duty under the Constitution, to prevent the enactment of such unconstitutional legislation and the consequent disruption of so critical a part of our criminal punishment system.”

But in the end, the final question for Clinton when it came to gutting habeas corpus was how to spin it. On April 23, 1996, the day before the ceremony on the South Lawn, Bruce Reed sent a memo to the White House staff secretary titled “Habeas language in signing stmt.” The remarks drafted for the president went into “far more detail” than they should, he wrote. “I realize this is a controversial issue,” Reed said, “but it is also one that could get us in trouble if we say more than necessary.”

AEDPA has fulfilled the very concerns Clinton brushed aside upon signing the bill.

With the presidential election in view, Republicans were already “blasting us with the charge” that Clinton’s re-election would “be a bonanza for criminals’ rights,” Reed wrote, somewhat ironically. He suggested a number of edits to minimize avenues for attack. Among them: “We should drop the sentence, ‘I am advised that one provision of this important bill could be interpreted in a manner that would undercut meaningful federal habeas corpus review and raise profoundly troubling constitutional issues.’ This sentence could be used against us,” he warned, “and doesn’t add anything, since we later say we don’t think it will be interpreted this way.”

Yet Clinton’s final remarks struck a defensive tone. His signing statement contained four paragraphs on the habeas provisions in AEDPA, assuring that they would neither “limit the authority of the federal courts” or “deny litigants a meaningful opportunity” to win evidentiary hearings. “Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent federal courts have the power ‘to say what the law is’ and to apply the law to the cases before them,” Clinton said. “I have signed this bill on the understanding that the courts can and will interpret these provisions … in accordance with this ideal.”

But Clinton was wrong. AEDPA has instead fulfilled the very concerns he brushed aside upon signing the bill. It is a law “misconceived at its inception and born of misguided political ambition,” as Judge Stephen Reinhardt recently wrote, some 25 years after testifying before Congress, “and repeatedly interpreted … in the most inflexible and unyielding manner possible.”

Ironically, AEDPA had little bearing in the end on the case of Timothy McVeigh, whose relatively swift execution in 2001 had more to do with political will than stringent new review standards. Nor did AEDPA solve the problem its supporters claimed it would address in the first place — federal court dockets remain backlogged and prisoners spend longer awaiting execution than ever.

But in a sense, the cruelest irony is how AEDPA has affected those who are not on death row yet nonetheless face the prospect of dying in prison on dubious grounds. Ignored by those who championed the law — and still largely invisible from the debate — they have been no less affected by its legacy. As Lorenzo Johnson wrote from a prison cell last month, “AEDPA has been devastating for wrongfully convicted prisoners and their families. Reform is long overdue.”

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The prison was not visible from the gate. It sits a mile down the road, beyond Corrections Lake and rows of tall Georgia pines. Portable toilets and long strands of thin yellow rope divided the press area from the area set aside for protesters. At 6 p.m. sharp a white van came for the reporters who would watch the execution; there would be no other official witnesses that night. Yet the activists standing by were acting as witnesses of a different kind. “When they sign the death warrant, they say it’s being done in the name of Georgians,” said Kathryn Hamoudah, chairperson of Georgians for Alternatives to the Death Penalty. “Actually, no — you’re not doing this in the name of all Georgians. And we’re going to hold you accountable for this.”

“You’re not doing this in the name of all Georgians.”

GFADP holds vigils across the state each time there’s an execution — this is the fourth in 2016. The group’s website provides a map of 12 protest sites, from Atlanta, some 50 miles north of here, to Macon, 40 miles south. Executions are scheduled for 7 p.m., but vigils will sometimes go late into the night, as courts rule on last-minute appeals. Sometimes, like the night Troy Davis died, the U.S. Supreme Court will order a temporary stay, only for the execution to be carried out later. Other times, something goes wrong. When the state killed 72-year-old Brandon Astor Jones in February, nurses struggled for more than an hour to find a suitable vein, then inserted an IV into his groin. Later, the Atlanta Journal-Constitution described how Jones “fought death” — six minutes into the execution, “his eyes popped open” and he appeared to look at the clock in the execution chamber, as well as the prosecutor who sent him to die. His time of death was 12:46 a.m.

The vigils do not end until the coroner’s van exits the prison gates. So protesters come prepared for a long night. They dress in layers — some have folding chairs — and bring snacks to share. But that night, things were going swiftly. The U.S. Supreme Court had already refused to grant a stay, in a curt two-line order released earlier in the afternoon. There were no dissents.

Kenneth Fults in an undated photo.

Photo: Georgia Department of Corrections/AP

Yet there was much to be troubled by in the case of Kenneth Fults — or “Kenny,” as people here know him. Fults, who is black, admitted to killing his 19-year-old neighbor, Cathy Bounds, in 1996, shooting her in the head following a string of robberies. He pleaded guilty, hoping jurors would show mercy and sentence him to life. Instead, he was condemned to die. Among those who voted for the death penalty was a man named Thomas Buffington, who later admitted to an investigator, “I don’t know if he ever killed anybody, but that nigger got just what should have happened. Once he pled guilty, I knew I would vote for the death penalty because that’s what that nigger deserved.” Buffington had previously denied harboring any racial bias upon being selected for the jury years before. “No, sir,” he said, when asked if it made “any difference that in this case the defendant is black and the victim was white.”

Jurors who served alongside Buffington were disturbed by the revelations. In sworn affidavits included in Fults’s appeals, one woman said it was “very unfair” that he had been allowed on the jury. Another juror, who acted as foreman, said, “Mr. Buffington hid his feelings about Mr. Fults’s race during our deliberations. As the foreperson, I would have alerted the judge if I had known about Mr. Buffington’s true feelings.”

Perhaps more disturbing was the behavior of Fults’s own defense attorney, who himself was known to refer to his own clients as “nigger,” according to an in-depth piece in Mother Jones, and who, according to jurors, was often asleep during the proceedings. “I saw him sleeping off and on throughout the whole trial,” one juror said in an affidavit years later. “It really bothered me because here there was a man on trial for his life and his lawyer didn’t even care enough to stay awake.” Nor did he present “much information about Mr. Fults’s life or his background,” the juror said. “I have just learned that he went through a lot as a child and that he has been diagnosed as mentally retarded. If this information had been presented at the trial, it would have made a difference to me.”

Such factors would seem to merit a closer look — if not a new trial. Yet, citing procedural rules, the state repeatedly declined to act. The U.S. Supreme Court, which recently granted certiorari in a Colorado case in which a juror expressed prejudice against Mexicans, nonetheless refused to stay Fults’s execution on the same grounds. Nor did the Georgia Board of Pardons and Parole feel the need to intervene in the end. The board is “supposed to be a fail-safe when the courts get it wrong,” said Hamoudah, “yet time and time again, they’re not doing their job.”

“He had a racist defense team, a racist juror, he has an intellectual disability, and yet that wasn’t compelling enough? Then what is?”

Hamoudah is from Texas originally — “I’m no stranger to the death penalty,” she told me, or to its racist underpinnings. But the sheer brazenness of it in this case — not to mention Fults’s borderline IQ of 72 — makes the courts’ indifference hard to comprehend. “He had a racist defense team, a racist juror, he has an intellectual disability, and yet that wasn’t compelling enough? Then what is?”

Yet it wasn’t entirely surprising. Hamoudah was outside the prison in 2011 when the state killed Troy Davis, an execution that sparked protests across the world. Hundreds of people filled the prison grounds that night, with many hundreds more across the street. “There was an incredible amount of disbelief,” Hamoudah recalled. Many people held on to some faith that “the justice system is going to work. And it didn’t.” It wasn’t just the question of innocence — the majority of the eyewitnesses in Davis’s case had recanted their testimony — but the racial bias that permeated it from the start. “Even the most cynical of us have hope that … there will be someone who will take a position against this very blatant racism,” she said. But no one did.

“Every case has something,” another activist, Mary Catherine Johnson, told me. “They all are tainted with, you know, bad lawyers, or not bringing in mitigating evidence.” Indeed, in the past couple of years, Georgia has killed numerous prisoners who would not likely be sent to death row today: a Vietnam veteran with severe PTSD; a woman whose boyfriend carried out the murder in question (and who went on to provide spiritual guidance to women behind bars); a man repeatedly diagnosed with serious intellectual disabilities. But when it comes time for clemency hearings, she said, none of this makes a difference. “They are obsessed with the crime.”

Johnson started attending vigils in 2009 or 2010. Previously she had worked with the National Coalition to Abolish the Death Penalty in Washington, D.C. “We would protest at the Supreme Court, wear T-shirts,” she said. But much of the job was administrative, “stuffing envelopes” and other such work. When she moved to Georgia, where she’s from, Johnson said, “I heard on the radio one day that there was an execution scheduled — and it just floored me. I couldn’t believe it. Because it felt real all of a sudden.”

Johnson drove down to the prison with her boss, a California native who had protested executions at San Quentin. She was expecting hundreds of people, she said, but found just a handful. “It just hit home,” she said. During the vigil that night, she was especially struck by the way participants “talked about the person — his life, who he was. … All you read in the paper is the crime. But these people were talking about him as a human being. And that just floored me. I thought, ‘This is where I want to be.’”

Protesters sing outside the Georgia Diagnostic and Classification Prison in Jackson on Sept. 29, 2015, before the scheduled execution of Kelly Renee Gissendaner.

Photo: Ben Gray/Atlanta Journal-Constitution/AP

Among the protesters on Tuesday night were several who had never been there before. There was an older man who works in sales — he heard about the vigil from GFADP, and came down because of what he felt was hypocrisy among Catholics who claim to be “pro-life” but are silent on executions. There was a young Pakistani woman who heard about the execution on the radio the night before. “And I said, no, no, no — this can’t happen,” she said. She drove down to the prison in the hopes of visiting Fults before he died, not realizing the complex series of hurdles necessary to do so.

Just before 7 o’clock, Johnson called for everyone to gather around in a circle. Holding a photo of Fults, she described how his relatives had traveled to Jackson days earlier to have their final visits. A group named New Hope House, with whom Johnson volunteers, keeps a “hospitality house” near the prison for death row families. “I think there were maybe 20 [relatives] last night,” she said, including his children. The gathering for Fults was “a mixture of joy and sadness.” On the one hand, they were gathering as a family for the first time in years — there were meals to share and board games for the kids — but it was a reunion of collective trauma. After the parole board denied clemency, Johnson said, “There were many tears, as you can imagine.” But the prison allowed Fults to stay on the phone with them for hours that night. “They were passing [the phone] around and sharing stories. … He was on a rollercoaster of tears and laughing.”

None of Fults’s relatives came to the vigil. Most had traveled from Mississippi — some from Oklahoma — and “they all felt strongly that they wanted to be in their own homes tonight,” Johnson said.

“It’s very unusual for the execution to go forward at 7 p.m.,” Johnson said. “But it looks like that’s what’s happening now. So it’s probably happening as we speak.” The protesters joined hands. They passed around a list of every person Georgia has executed since the return of the death penalty in 1976. Participants read the 63 names three at a time, followed by the dates that they died. Then they sang Amazing Grace.

It was not yet 8 p.m. when the white van returned to drop off the media witnesses. A Georgia Department of Corrections spokesperson followed. She did not speak to the protesters, but on Twitter, reporters soon put the time of death at 7:37 p.m. A guard in a plain blue uniform approached the vigil. “It’s over,” he said. The guards in riot gear came up behind him, but were told to allow the group to stay a little longer. A few minutes later, the black coroner’s van drove past, carrying Kenneth Fults’s body. The van turned west onto Highway 36, away from the Christian lawn signs, and disappeared from view.

Top photo: Protestors with Georgians for Alternatives to the Death Penalty stand outside the Georgia Diagnostic and Classification Prison in Jackson ahead of the scheduled execution of Kenneth Fults on April 12, 2016. Mary Catherine Johnson, second from left, holds a photo of Fults.

The post Citing Racist Trial, Protesters Hold Vigil as Georgia Executes Kenneth Fults appeared first on The Intercept.

We were deep in the bowels of the Rio All-Suite Hotel and Casino. It was late February — just 24 hours after Donald Trump’s victory speech following the GOP caucuses in Nevada. As pundits and political operatives left Sin City, thousands of scientists, lawyers, and academics had arrived for nearly a full week of wall-to-wall panels and PowerPoint presentations by top forensic experts from around the globe. The reception that night was hosted by the group’s forensic dentists, the “odontology” section. In a ballroom down the hall, an audience trickled in for an evening event called “Bring Your Own Slides,” the forensic scientist’s equivalent of an open mic. There, students sought autographs from a famed pathologist in the back of the room, while up front a presenter showed graphic pictures of an exhumed corpse.

The AAFS is the largest professional forensic science organization in the world. Its 6,500 members include doctors, engineers, and scientists of all stripes — practitioners who lend expertise and testimony to lawyers and law enforcement. Founded in 1948, its mission is to “elevate the standards and advance the cause of the forensic sciences.” Membership is governed by a strict code of ethics “to promote the highest quality of professional and personal conduct,” according to the AAFS’s published guidelines, and available “only to those persons of professional competence, integrity, and good moral character.”

Rio All-Suite Hotel and Casino in Las Vegas, Nevada.

Photo: Shutterstock

Although word at the Rio was that the scientists were not a gambling bunch, conference organizers seemed intent on keeping things lighthearted. The thick convention program was decked out with a poker theme; attendees could purchase AAFS shot glasses or a commemorative T-shirt with a Nevada license plate on the back that read “VIVA 4N6.” A silent auction offered such novelty items as coasters covered with fake blood spatter, a human skull belonging to the victim of a fatal sling-shot, and a T-shirt with a bone on it reading, “I Found This Humerus.” At their comedic best, forensic scientists blend puns with dark humor. One pathologist’s presentation was titled “Chainsaw-Related Fatalities: What Is All the Buzz About?”

In a ballroom down the hall, an audience trickled in for an evening event called “Bring Your Own Slides,” the forensic scientist’s equivalent of an open mic.

For all the outward playfulness, however, a looming tension hung over the conference — the nagging knowledge that all is not well in the world of forensics. Despite the image peddled by popular TV shows like CSI: Crime Scene Investigation, which portray forensic experts as crime-fighting scientists with unparalleled gifts of observation, the field has become increasingly embattled in recent years. Crime labs have come under fire for mishandling evidence, and high-profile exonerations have exposed how “junk science” has sent innocent people to prison. The bad press has led to heightened skepticism of forensics, forcing practitioners to defend their reputation.

2015 was no exception. Soon after the AAFS convened last February under the banner “Celebrating the Forensic Science Family,” a series of controversies cast further scrutiny on the field. There was the abrupt halting of DNA testing in Washington, D.C.’s first independent crime lab — a three-year-old $220 million project whose director was forced to resign amid damning audits. There was the ongoing fallout in Massachusetts over a crime lab chemist who falsified thousands of drug tests over her nine-year career. And there were the usual headlines exposing miscarriages of justice based on junk science: a Texas man freed after 25 years in prison due to bad “bite-mark” evidence, and three men exonerated in New York after more than 30 years based on a faulty arson investigation (one died of a heart attack in prison). Among the record number of cleared cases in 2015, according to the National Registry of Exonerations, 45 involved “false or misleading forensic science.”

But perhaps most devastating, in April 2015, the Justice Department issued a bombshell announcement, formally admitting to a disastrous mishandling of evidence that lawyers, prisoners, and even its own forensic experts had pointed out for years. For more than two decades, as the Washington Post reported, FBI analysts doing hair-fiber examination “gave flawed testimony in almost all trials in which they offered evidence against criminal defendants.” In a post-conviction review of thousands of cases dating before 2000, the Innocence Project and the National Association of Criminal Defense Lawyers had so far discovered exaggerated testimony by FBI analysts in a staggering 95 percent. This included 32 defendants sentenced to death, 14 of whom were executed or died in prison before the problems were publicly acknowledged.

For the forensic community — and for the feds, who have trained countless local and state analysts in hair-fiber analysis — it was a PR disaster. There was no escaping the crisis at hand. The AAFS had no choice but to confront it. This year, the conference theme was “Transformation: Embracing Change.”

Bad Hair Days

At the opening plenary in the Rio’s Brasilia Ballroom, U.S. Deputy Attorney General Sally Yates started with the good news. “I’m happy to say that we’re making real progress in our efforts to strengthen the way forensic science is practiced in our laboratories and presented in our courtrooms,” she announced. For the first time in history, Yates said, the Department of Justice had imposed accreditation standards for its labs, requiring that “whenever practicable, DOJ prosecutors use accredited labs when testing evidence.” What’s more, she said, as an incentive to states and localities seeking federal funds, the DOJ would give “a ‘plus factor’ to grant applicants who will use the money to seek accreditation.”

That the federal government’s own crime labs have gone for so long without imposing basic standards and oversight was a grim reminder of what passes for progress in 2016. The move was one of the first recommendations put forward by the National Commission on Forensic Science, formed in 2013 through a partnership between the Obama administration and the National Institute of Standards and Technology (NIST). (Yates, a veteran prosecutor and former U.S. attorney in Georgia, serves as the commission’s co-chair.)

The landmark 2009 National Academy of Sciences report on the state of forensics.

In particular, the report criticized branches of forensics known as “pattern-matching” — the analysis of such visual evidence as fingerprints, blood spatter, handwriting, and bite marks — as lacking any actual scientific underpinning. Also called “impression-matching,” these disciplines essentially boil down to a given “expert” eye-balling two or more objects and deciding whether they match — say, a bloody shoe print left at a crime scene and an actual shoe seized from a suspect, or tire marks left on pavement and the tires on a suspect’s car. There are no real standards guiding the interpretation of such visual evidence, so conclusions are based on subjective criteria. In some ways, the process is no more complicated than a child’s picture-matching game.

To say that the NAS report caused great upheaval would be an understatement. Its sharp assessments pulled the rug out from under even the oldest and most venerable disciplines within the forensic science community. Although seven years have passed since its release, in many ways, the field has barely begun to digest it, let alone devise solutions. Today, the NAS report comes up again and again wherever forensics reform is discussed. Vegas was no exception.

The NAS report concluded that nearly every single area of forensic science is plagued by serious questions of scientific validity and reliability.

Turning to the bad news — the catastrophic revelations about the FBI’s microscopic hair comparison unit — Yates spoke carefully. “It’s clear that, in at least some of the cases reviewed, lab examiners and attorneys either overstated the strength of the forensic evidence or failed to properly qualify the limitations of the forensic analysis,” she said. “This doesn’t necessarily mean that there were problems with the underlying science,” she continued. “It means that the probative value of the scientific evidence wasn’t always properly communicated to juries.”

To guard against such “testimonial overstatement,” Yates said, the FBI would be taking steps to make sure its experts deliver conclusions in court that are “supported by existing science.” Along with a “root cause analysis” of what went wrong with its hair-fiber analysis, the DOJ also plans to expand its ongoing review to other forensic practices — “not because of specific concerns with other disciplines,” Yates emphasized, somewhat defensively. But in order to “ensure the public’s ongoing confidence in the work we do.”

Yates did not identify the forensic practices the DOJ plans to assess — the department is just beginning to plan its review. But echoing the NAS report, she cited the “so-called ‘pattern’ or ‘impression’ disciplines” as presenting “unique challenges.” Despite her assurance that the DOJ harbors no particular concerns about any specific disciplines, it seemed clear that these would be first in line. “We’re thinking of it as a forensics ‘stress test,’” Yates said.

It’s Not Rocket Science

Yates’s announcement was swiftly applauded by the National Association of Criminal Defense Lawyers and the Innocence Project, along with Sen. Patrick Leahy, ranking Democrat on the Senate Judiciary Committee, who issued a press release praising the DOJ for its review, which would ensure that the “public can learn exactly what went wrong and how we can prevent this from ever happening again. Americans need and deserve a criminal justice system worthy of its name.”

Inside the Rio, it was harder to gauge the immediate reaction — but there was good reason to expect that, for some attendees, the review would not be welcome news. While the theme for the annual AAFS meeting has been consistently upbeat in the years since the NAS report first raised red flags — “The Forensic Sciences: Founded on Observation and Experience, Improved by Education and Research” (2013); “Our Path Forward” (2014) — the response from certain practitioners has been decidedly less so. Particularly among the forensic odontologists who practice bite-mark analysis, the reaction has been downright aggressive.

The “science” of bite-mark analysis relies on two conceits — first, that human dentition is unique, and second, that human skin is a sufficient and reliable substrate on which to record that uniqueness. The problem is that neither proposition has ever been proven — and the only empirical research attempting to do so has shown neither assumption to be true. Nonetheless, the subjective conclusions of bite-mark analysts have been allowed into evidence in criminal cases since the 1950s, when a Texas grocery store burglary was solved with the help of a dentist who matched a suspect’s teeth to a bite mark left in a piece of cheese found at the crime scene.

Bite-mark experts weren’t able to agree on the most basic question: “Is this a bite mark?”

In the past few decades, as bite-mark evidence has been linked to wrongful convictions, there has been growing recognition that there is no real science to support bite-mark analysis — including among members of AAFS. This has not gone over well with forensic odontologists. At the 2014 AAFS conference in Seattle, some sessions erupted into near shouting matches, as members of the American Board of Forensic Odontology (ABFO) — the discipline’s certifying body — reacted with hostility to presenters sharing research challenging the reliability of bite-mark analysis. One researcher was grilled so intensely that he was visibly shaking when he returned to his seat after his presentation (and even after he sat down, the grilling continued, from an odontologist sitting behind him). That same year, at a dinner hosted by the ABFO, a guest named Melissa Mourges — an assistant district attorney in Manhattan and a perfervid defender of bite-mark analysis — peppered her talk with nasty personal attacks on a scientist named Mary Bush, who along with her husband, Peter, has conducted critical (and ultimately unflattering) research into bite-mark evidence.

Following the Seattle gathering, the ABFO sought to show it had standards guiding its work. Members developed an elaborate “decision tree” to illustrate the process of identifying bite marks and matching them to a specific person’s teeth. But the project backfired: When it came to the first, most basic question on the chart — “Is this a bite mark?” — participating dentists were unable to clear even that initial hurdle. Of 100 case studies reviewed by 39 ABFO-certified bite-mark experts, there was agreement on that question just four times. The decision tree’s discomfiting results were presented at the following AAFS conference in Orlando, Florida, in 2015. This time, the odontology sessions were more subdued.

Dr. Michael Bowers.

Photo: Kendrick Brinson for The Intercept

Things have not improved for the bite-mark matchers. Last year saw a storm of withering criticism in the press, including a four-part series in the Washington Post and an investigative report by The Intercept. In October, a Texas man named Steven Mark Chaney was released after spending 25 years in prison for murder on the testimony of an expert who told jurors that there was only a “one in a million chance” that marks found on the victim could have come from anyone else. Ultimately, a Dallas judge and county prosecutors agreed that Chaney should be freed based on the finding that bite-mark analysis is, indeed, junk science. To date, 24 wrongful arrests or convictions have been linked to bite-mark evidence; several additional cases are pending before various courts. And on February 12, 2016, less than two weeks before the AAFS conference, the Texas Forensic Science Commission issued a landmark decision calling for a state moratorium on the use of bite-mark evidence unless and until the practice can be scientifically validated. The commission has also ordered a review of every Texas conviction where bite-mark evidence was allowed.

If there was reason to believe the bite-mark loyalists might arrive in Vegas chastened, or more willing to consider criticism of their field, the odontology sessions at the AAFS conference quickly proved otherwise. Instead of presenting any new research — or even plans for new research that could lead to validation of the practice — bite-mark defenders doubled down, stressing the value of the discipline and warning about how frightening a world it would be without it. Many presentations were more like attaboy affirmations, delivered with a side of subtle (and sometimes not-so-subtle) jabs at critics.

In one presentation titled “Bite Marks — Maybe It Is Rocket Science,” Florida dentist Kenneth Cohrn derided the NAS report as more “opinion paper” than scientific document and slammed critics “posing as experts,” including journalists, calling their critiques “opinionated, sensationalized, and not scientific.” One slide featured a prominent picture of Mary and Peter Bush, presenting them as foes who wish to ban bite-mark evidence from the courtroom — one of three separate references to the couple during Cohrn’s 15-minute talk. In another presentation, “Scorched Earth Forensics: Why the Move to ‘Eradicate’ Disciplines From the Courtroom Is Bad for Science and Bad for the Law,” Melissa Mourges delivered a heavy dose of righteous indignation. After dissing the NAS report — “not everything” can be tested like a “school science project” — Mourges pointed to forensic psychology as a discipline that is even more subjective than bite-mark examination, yet hasn’t been attacked in the same fashion. (Some of her best friends are forensic psychologists, she added, “so I do not want to read in some stupid blog tomorrow that I badmouthed” the field.) Mourges warned that getting rid of bite-mark evidence would almost certainly lead to tragic results — by eliminating potentially exculpatory evidence that could actually help criminal defendants and by allowing child abusers to go unpunished. We shouldn’t “throw the abused baby out with the bathwater.”

For a casual observer unaware of the turmoil within the world of forensic odontology, the sessions in Vegas might have seemed impenetrable or inexplicably tense — definitely a little weird. When it was Bowers’s turn to present on the “rise and fall” of bite-mark analysis, there was some anticipation that he might face heckling or snide questions from the very colleagues who previously colluded to try to oust him. Instead, the crowd was almost exaggeratedly polite. (“That was kind of disappointing,” one dentist joked afterward.) Yet, outside the room, attendees to his session were greeted at the door by a stack of mysteriously placed excerpts from a Washington Post article exposing the lengths Mourges will go to defend the evidence she relies on in criminal cases. The printed passages showed how she altered a sentence from the NAS report in a court filing in order to suggest that bite-mark evidence is scientifically accepted — a blatant mischaracterization of the study, which concluded the opposite is true.

At the lectern, Bowers spoke with a casual air — no hint that this was his big comeback after emerging victorious over the ABFO. Acknowledging that some “people want to discount the NAS report,” he called upon them to “admit and accept” its criticisms and “move on.” Without naming names, he chided previous presenters for blaming critics and the media for their problems. “The public wants to know the truth,” Bowers said. Indeed, there are people whose freedom is at stake — he pointed to the case of Bill Richards, who was convicted of killing his wife based largely on the testimony of two bite-mark experts. Those experts have since recanted their testimony and Richards’s case is pending before the California Supreme Court. For Bowers, the Richards case is one of many that raise the question: Don’t defendants have a right to reliable forensic evidence?

Photo: Shutterstock

Trust Us, We’re Experts

The odontologists’ head-in-the-sand attitude was in sharp contrast to other disciplines represented in Vegas. Consider the fingerprint experts, whose presentations were generally earnest and optimistic — in keeping with the “embracing change” theme of the conference.

There is no more ubiquitous and familiar a forensic practice than that of fingerprint analysis. Its origins go back to the 1800s, and like virtually all areas of forensic science, it was further developed primarily by — and according to the needs of — law enforcement. Also known as “friction-ridge” analysis, fingerprint analysis today involves collecting typically partial — and often distorted or “noisy” — latent prints from a crime scene and then matching them to a whole clean print taken from a suspect or victim, or pulled from a database. Although the practice is widely seen as foolproof, it has never been subjected to rigorous scientific scrutiny. Nor has there been any kind of standardized training or guidelines for fingerprint examiners — no rules to dictate, for example, how many print details should be considered when contemplating a match. The NAS report noted that “historically,” fingerprints have served as a valuable tool, “both to identify the guilty and to exclude the innocent.” But it also highlighted the “limited information about the accuracy and reliability” of fingerprint analysis, warning that expert claims of “zero error rates are not scientifically plausible.”

Although fingerprint analysis is widely seen as foolproof, it has never been subjected to rigorous scientific scrutiny.

Since the release of the NAS report, however, the fingerprint folks have been on their game. Researchers have sought to determine match error rates. Examiners have started to change how they talk about their findings. At the conference, one notably upbeat presenter was Henry Swofford, head of the U.S. Army crime lab’s latent print branch. In two separate sessions, he outlined the issues within the field and shared the solutions his lab had been developing — including reframing the way analysts report and testify on their conclusions (basically, by not claiming that a print can be individualized to a person, which implies 100 percent infallibility). And he described research underway to quantify the degree of correspondence between two impressions and to estimate the likelihood that correspondence pointed to the same source.

Indeed, in acknowledging the previous bad practices among fingerprint analysts, the affable Swofford poked some fun at his own profession — he talked about how he himself had been trained to consider “sufficient” quantities of print detail in determining whether two prints could be matched. “And I thought, yeah, I’m an expert!” But then he realized he was never told what “sufficient” actually meant: “and to date I haven’t been able to find an answer to that question.” Although the lack of specificity and standardization raises troubling questions about how many convictions may have hinged on faulty fingerprint analysis, Swofford said he isn’t certain that it is an issue. In a short post-conference interview, he said that fingerprints have always been considered a “highly discriminating biometric” and nothing arising from current research challenges that. But he was also confident that it would be possible to strengthen the field. Friction-ridge analysis is on the “cusp of real change,” he said, and scientists need to work with the legal community to implement reforms. “And I’m looking forward to it.”

To be fair, the bite-mark dentists weren’t the only ones not exactly rushing to embrace change in Vegas. In a talk titled “Critics Say the Darndest Things!” presenter Jan Kelly, a former president of the American Board of Forensic Document Examiners, focused mainly on how critics of handwriting analysis are often full of baloney and unfairly lump the practice with the junk science of bite marks and hair microscopy. Not a single wrongful conviction has ever been related to handwriting analysis, Kelly argued, at which point someone in the audience piped up: “Dreyfus!” It was a reference to the 1894 court martial of French army general Alfred Dreyfus, who was erroneously accused of treason based on a handwritten memo that an expert claimed could be positively matched to him. Kelly acknowledged the exception to her statement. But then she pivoted: Was that an Innocence Project case? “No,” she said, answering her own question. (In fact, the National Registry of Exonerations includes at least one wrongful conviction based in part on questionable handwriting analysis.) Of course, a lack of exonerations does not prove a forensic practice is necessarily sound. The NAS report noted that “there may be some value in handwriting analysis,” while warning that “there has been only limited research to quantify the reliability and replicability” of the practice.

In another session, an enthusiastic podiatrist from Indiana, Dr. Michael Nirenberg, stressed the significance of foot-related evidence in solving crimes. “A lot of people don’t think much about feet,” he said. “In forensic podiatry, we always say, ‘You cannot float through a crime scene!’” Although footprints have long been used as evidence by law enforcement, forensic podiatry is a relatively new specialty — it was not even mentioned in the NAS report. Its professional association, the American Society of Forensic Podiatry, was founded in 2003. In a 2008 article for Evidence Technology Magazine, one practitioner drew a distinction between his work and that of a mere “footwear examiner,” explaining that forensic podiatrists evaluate evidence “for the purpose of connecting an individual to footwear or a footprint.”

Indeed, in Vegas, Nirenberg claimed that a forensic podiatrist can link a suspect to wear patterns — the imprints and indentations inside of a shoe. (Performing a “shoe autopsy” helps with such analysis.) An emerging branch of the field, he said, is studying someone’s gait to link the person to a crime. “It’s very exciting,” Nirenberg said.

Forensic podiatry is a good example of a field that has established itself as a forensic discipline despite a thin scientific basis. Last fall, the Boston Review published an article titled “Forensic Pseudoscience,” which singled out the discipline as an illustration of what law professor and forensics expert Daniel Medwed has described as “rogue scientists” who “flourish” in the absence of oversight. Nirenberg and a colleague took umbrage at the article, writing a letter defending the discipline and pointing out that in a courtroom setting, “Experience suggests that where doubts exist as to expertise, this will inevitably come out during cross-examination.”

In response to follow-up questions posed by email, Nirenberg disagreed that his field would be considered among the pattern-matching disciplines questioned by the NAS report. Practitioners rely on sophisticated and detailed knowledge of the foot — “biomechanics, foot type, pathologies, deformities, and so on” — when considering whether a suspect’s and perpetrator’s footprint can be matched. That, of course, sounds much like the process forensic dentists describe when it comes to analyzing bite marks.

In Vegas, Nirenberg acknowledged that practitioners need to be careful about the opinions they offer the courts. But, seeking to prove that matches between feet and footprints can be scientifically accurate, he also threw out a wild array of disparate statistics as alleged evidence. A study out of India found footprints were distinct to one in 10,000 people, while a California study put that measure at one in 100,000. He even cited research coming out of the Royal Canadian Mounted Police that said the chance of finding a random match for a footprint is one in 1.27 billion. The numbers presented a quandary that was a consistent theme throughout the conference: How can experts express reliability to jurors in the absence of reliable scientific data?

Photo: Tritechforensics.com

So You Want to Be a Forensic Scientist

The AAFS exhibit hall was housed in the Rio’s Amazon ballroom, a massive space filled with conference sponsors, scientific publishers, and purveyors of forensic gadgetry. On the day it opened, a crush of conferencegoers headed straight for the free sandwiches, while others swarmed around the freebies available at various booths. Along with the usual candy and pens, it was a peculiar grab bag of weird stuff: wound measuring charts, evidence bags in various sizes, a clear plastic tube labeled “CONTAMINATED NEEDLES,” and a sperm-shaped stress toy. The exhibit hall also played host to the AAFS’s annual wine and cheese reception; attendees sipped wine amid human X-rays and lab samples with labels like “urine” and “stained money.”

A booth belonging to AAFS displayed a small handbook titled “So You Want to Be a Forensic Scientist!” A chapter introducing the “general” section of AAFS described how, as “the academy’s gatekeeper,” members of the section are “always willing to consider accepting new disciplines that develop in response to the needs of the justice system.” It quoted a former AAFS president, writing in the Journal of Forensic Sciences in 1983: “There is literally no end to the number of disciplines that become ‘forensic’ by definition,” he wrote. “Nor is there an end in sight to the number of present or future specialties that may become forensic. The examples are many.”

For members of AAFS’s jurisprudence section, the practical problem of how to use certain forensic evidence in court — if at all — was a constant theme in Vegas. Every day, in courtrooms across the country, judges act as “gatekeepers” in deciding what kind of evidence to allow. Yet few are equipped to determine whether a given forensic expert is sound in his or her analysis. “Why do we tolerate lawyers that don’t understand the science they’re using?” said one speaker, herself a sitting judge. “Why do we tolerate judges who are willfully science-phobic? I speak of myself, too.” Like many of her colleagues, the judge joked, she had done her best to avoid science throughout her schooling career. The same sentiment was echoed in a separate session by a defense attorney from the Twin Cities, who has since found herself navigating a massive crime lab scandal that has cast doubt on scores of convictions.

In his own presentation, Fabricant laid out the absurd reality. When it comes to the assessment of courtroom evidence, it is too often a matter of the blind leading the blind. “We have scientifically illiterate judges, scientifically illiterate lawyers, and scientifically illiterate jurors,” Fabricant said. These are the people determining “whether forensic science is valid and reliable science.”

A number of sessions set out to grapple with this problem. In a presentation titled “Better Ways to Manage Poorly Validated Scientific Evidence,” Michael Saks, a professor of law and psychology at Arizona State University, shared specific suggestions, some of which are already underway — labs should be accredited and examiners certified; evidence should be blind tested, so that an examiner knows only as much about the case as is necessary for testing. (We’re “used to blind tests at county fairs,” Saks noted. Why not also in forensic labs?) Judges must constrain forensic testimony to what is scientifically known in each field — and jurors should be instructed on the limitations of any given field.

Such safeguards, of course, do not solve the deeper problem of poorly validated forensics itself — that project is ultimately up to the broader scientific community. Throughout the conference, a great deal of focus was devoted to the burgeoning process of developing rules and standards for forensic disciplines, which, if done right, will provide desperately needed guidance to lawyers and judges for gauging the reliability of forensic evidence. But it was not always clear that these standards were being designed with the practical needs of the legal community in mind.

The DOJ review is just the beginning of a process that until now, has been almost completely overlooked.

Opening the criminalistics presentations of AAFS, Section Chair John Lentini — a chemist, author, and fire investigator who has done heroic work exposing faulty arson convictions — introduced the Organization of Scientific Area Committees (OSAC), a project of the National Institute of Standards and Technology. The launch of OSAC was the “happiest news” Lentini had to share about the past year. “People are actually going to write up some standards,” he exclaimed, somewhat wryly. It would be hard to overstate the scale and scope of this project. Its goal, according to NIST, is “to support the development and promulgation of forensic science consensus documentary standards and guidelines, and to ensure that a sufficient scientific basis exists for each discipline.” Explaining its structure, John Paul Jones II, associate director for OSAC affairs, displayed a color-coded, multi-pronged chart resembling a molecular map, showing a dizzying array of categories and committees, each containing subcategories and subcommittees. More than 540 members make up the committees, from scientists to government workers to private-sector experts. Following a multilayered approval process, each standard and guideline will be placed on a registry — ideally a one-stop-shop for information on forensic best practices.

The OSACs appear to have been met with a mix of anticipation and dread. One slide showed the iconic hands-on-the-TV image from the horror movie Poltergeist, reading: “OSAC Registries: They’re here.” In February, after months of deliberation, NIST published its very first OSAC standard, by the subcommittee on controlled substances. It lays out the minimum criteria for identification of seized drugs — an “essential first step” toward improving chemical analysis of controlled substances. For a limited time, Jones explained, NIST would grant free web access to the standard — along with future ones — to law enforcement, prosecutors, public defenders, and other stakeholders. (On its website, NIST says the standards will be free for up to two years. But currently, the link providing access yields an error message.)

It was hard to understand why, as a government-funded project, the standards should cost money at all — especially since that would discourage anyone with a limited budget from using them. In the ballroom next door to the OSAC presentation, members of the jurisprudence section were struggling with how to better educate themselves on forensics. During a discussion on how to introduce forensics into the law school curriculum, one criminal defense attorney noted that every year, the AAFS conference presents impressive information when it comes to “grants, standards, and accreditation” — work that “produces excellence in forensic science.” But when he gets to court afterward, it is a rude awakening. If such work doesn’t get back to lawyers and judges, he warned, “It is all for naught.”

Photo: Shutterstock

The Duty to Correct

On March 21, the National Commission on Forensic Science met in Washington, D.C. There, Yates spoke once more about the planned review by the DOJ. “The goal is to start a conversation,” she told members. “And to get your input on the best path forward.” The head of the DOJ Office of Legal Policy, Jonathan Wroblewski, then laid out some of the questions at hand. “It begins with which disciplines — which ones we should be looking at. How do we select the cases? What are the standards by which we should be testing the testimony that was given in those closed cases? Who should be conducting this review?” Although much remains to be seen, Wroblewski said, “We think that initially, we should be considering disciplines that require forensic professionals to compare two items, then to make judgments about the similarities and differences.” He echoed what Yates said in Vegas. “This is about quality assurance. It’s not about the fact that we have any kind of suspicions as to particular disciplines in forensic science.”

The DOJ review is just the beginning of a process that until now, has been almost completely overlooked — and was barely mentioned in Vegas. For all the talk of moving forward and embracing change, the AAFS conference spent precious little time addressing a different imperative — the need to look backward. Or, as lawyers like Fabricant call it, the “duty to correct.” Indeed, as errors and deficiencies in forensics are acknowledged, so too should be the cases in which those deficiencies and errors were allowed into evidence.

Until the FBI’s recent inquiry into hair microscopy cases, such work was done in a scattershot way, mostly at the state level. The Texas Forensic Science Commission, for example, has facilitated a review of dozens of old arson convictions — a process jointly handled by the Innocence Project of Texas in partnership with the state’s fire marshal — and is now embarking on the bite-mark case review. But the review of potential wrongful convictions is largely left to a patchwork of modestly funded innocence projects, law school innocence clinics, and to a small number of conviction integrity units within prosecutors’ offices. (If there is any glaring blind spot in the NAS report, it is likely the failure to address the impact that faulty forensics may have had on a large number of criminal cases. The report acknowledges the troubling way forensics are vetted by judges and lawyers for admission into evidence, but notes only that this demonstrates a “tremendous need for the forensic science community to improve.”)

Generally, the criminal justice system favors finality — a virtue that has been reinforced in recent decades through legislation and expansion of certain legal doctrine, including the concept of “harmless error” — where mistakes during a criminal trial are acknowledged upon review, but ultimately shrugged off as not having impacted the outcome of the case. In short, it is a standard of expediency — and an example of the difference between law and science. Although science is founded on the principle of perpetual inquiry, the legal system prefers the proposition of one-and-done.

The system is simply not designed to facilitate any meaningful wide-ranging review — and more often than not, state actors fight tooth and nail against reopening old cases. Today, there is no way to ensure that every potential wrongful conviction tied to faulty forensics will be identified or remedied. Take, for example, the experience of the defense attorney from the Twin Cities. Even in the face of glaring failures by the state’s crime lab, she said, some prosecutors refused to cooperate with her to reassess the cases impacted by the lab’s incompetence.

Yet, the sheer power of forensic evidence makes such reviews crucial. As the AAFS conference came to a close, Fabricant shared the story of George Perrot, a man released from prison in February. Perrot spent more than two decades incarcerated for the 1985 rape of a 78-year-old Massachusetts woman. Although the woman repeatedly insisted to police that Perrot was not her assailant — he didn’t look at all like her attacker — the then-17-year-old was nonetheless convicted based largely on the testimony of an FBI hair examiner who said a single hair found in the victim’s bed was a match to Perrot. Perrot was sentenced to life in prison. If it weren’t for the FBI’s comprehensive hair microscopy case review, he would still be in prison. The power of forensic evidence in this case was enough to supersede the victim’s insistence that they had the wrong man, Fabricant pointed out. “I find that truly horrifying.”

Related:

• Playing With Fire: How Junk Science Sent Claude Garrett to Prison for Life
• Bitten by Experts: How the Flawed Science of Bite-Mark Analysis Imprisoned a Man for Murder
• Five Disturbing Things You Didn’t Know About Forensic “Science”

The post In Las Vegas, Embattled Forensic Experts Respond to Scandals and Flawed Convictions appeared first on The Intercept.

Yet, face to face with an emotional Jackson, who had to pause to regain his composure as he described how he came “perilously close” to execution, Clinton could only repeat a line that Jackson himself later described as “canned.”

“You know, this is such a profoundly difficult question,” she began. “And what I have said — and what I continue to believe — is that the states have proven themselves incapable of carrying out fair trials that give any defendant all of the rights a defendant should have, all of the support that the defendant’s lawyer should have. And I have said I would breathe a sigh of relief if either the Supreme Court or the states, themselves, began to eliminate the death penalty.”

But then she pivoted. “Where I end up is this — and maybe it’s a distinction that is hard to support — but at this point, given the challenges we face from terrorist activities, primarily in our country, that end up under federal jurisdiction, for very limited purposes I think that it can still be held in reserve for those.” Invoking the Oklahoma City bombing and 9/11, Clinton said, “That is really the exception that I still am struggling with.”

Clinton has been honing this response since at least November, when she tempered her long-held support for the death penalty at a Democratic forum by saying it should be reserved for “really heinous crimes,” mostly at the federal level. There, too, she criticized the states — “predominantly but not exclusively in the South” — for hastily seeking death sentences. And there, too, she said she would “breathe a sigh of relief” if the death penalty was abolished — in this case, by the Supreme Court, on the grounds that it is “cruel and unusual punishment.” Clinton struck the same note at a Democratic debate last month, telling MSNBC’s Rachel Maddow, “I deeply disagree with the way that too many states are still implementing” the death penalty. “I have much more confidence in the federal system,” she said.

“If it were possible to separate the federal from the state system by the Supreme Court,” Clinton added, confusingly, “that would, I think, be an appropriate outcome.”

If it’s hard to imagine how the Court might strike down the death penalty for states but not the federal government, this is just one problem with Clinton’s hedging on capital punishment. It is emblematic of Clinton as a politician that she has managed to stake out a position that lets her have it both ways while costing her absolutely nothing: vague semi-opposition to the death penalty at the state level (for which she would bear no direct responsibility as president), paired with confident support for executions at the federal level — the only realm in which opposing the death penalty could have any practical impact.

Apart from being slippery and convoluted, Clinton’s stance also happens to rest on a view of the death penalty that is both outdated and misleading. Worse, she has decided to perpetuate the insidious notion that the death penalty can be reserved for the “worst of the worst” — a myth that has been debunked again and again.

THE REALITY, as Clinton is no doubt aware, is that at the state level, capital punishment is already on its way out. Seven states have ended the death penalty in the past 10 years, including her own adopted state, New York. Executions have dropped precipitously — and additional repeal efforts are underway across the country, from Delaware to Utah, both of which tried and failed to pass abolition legislation this year. Public support for the death penalty remains, but has reached historic lows in recent years — not an unlikely explanation for Clinton’s move to distance herself from it now. (A 2015 Quinnipiac Poll found declining national support for the death penalty — except for terrorists.)

Clinton’s critique of the death penalty at the state level might make more sense if it were 1992.

Clinton’s critique of the death penalty at the state level might make more sense if it were, say, 1992 — the year her husband made a special trip home from the campaign trail for the execution of the brain-damaged Ricky Ray Rector in Arkansas. In those years, states were sending people to death row at a rapid pace — data available at the Death Penalty Information Center shows how death sentences “peaked in the mid-1990s and have declined significantly since that time.”

Today, for all the problems plaguing the death penalty across the country, a rash of new death sentences is not at the top. Jurors are increasingly rejecting the gurney in favor of life without parole and many prosecutors are less willing to seek death to begin with. Clinton’s portrayal of states as still moving “much too quickly to try people for capital offenses” ignores that even in those that continue to kill prisoners on a regular basis, new death sentences have grown increasingly rare. In Georgia, for example, which executed five people last year, there was not a single new death sentence in 2015. The same trend can be seen across the South.

A major contributing factor to the drop in death sentences is an improvement in capital defense — another place where Clinton’s critique feels weirdly dated and ill-informed. While, unquestionably, bad lawyering and lack of resources have unfairly sent defendants to die for decades, this is far less true today. Recent studies have shown that in states like Virginia, which opened four regional capital defender offices in 2004, better representation has led to fewer and fewer death sentences. In Texas, too, new capital defender offices have contributed to a notable drop in new death sentences.

Of course, serious problems endure — and there are certainly myriad other reasons to condemn the death penalty as currently carried out by the states, from persistent racial bias to the decades prisoners languish on death row to grotesque execution experiments amid shortages of lethal injection drugs. But Clinton has made no mention of these — perhaps because the very same issues apply to the federal system that she holds in such high esteem.

President Bill Clinton signs the $30 billion crime bill during a ceremony on the South Lawn of the White House in Washington on Sept. 13, 1994.

Photo: Denis Paquin/AP

IT WOULD NOT be cynical to suggest that Clinton’s embrace of the federal death penalty is related to her husband’s instrumental role in shaping it. Even if she wanted to, it would be impossible to separate federal death row from the Clinton name. Although there has been much recent debate about how much to blame the 1994 crime bill for mass incarceration, its impact on this front is clear.

The law contained the 1994 Federal Death Penalty Act, which vastly expanded the offenses for which federal defendants could face execution. After Congress revived the federal death penalty in 1988, authorizing executions for “drug kingpins,” the ’94 law introduced dozens of new death-eligible crimes. The immediate spike in death-eligible federal capital defendants was tracked by the Federal Death Penalty Resource Counsel Project, which counted “26 death-eligible defendants in 1993, 63 in 1994, and then upwards of 150 in almost every subsequent year,” according to a 2010 report by a committee of the Judicial Conference of the United States. (After the Oklahoma City bombing, the 1996 Antiterrorism and Effective Death Penalty Act sharply curtailed the review process for prisoners on death row across the country.)

Although federal death row prisoners still represent a small fraction of the total number of people facing execution in the United States  — 61 versus nearly 3,000 at the state level — today the vast majority of those condemned to die by the federal government were sentenced under the 1994 law.

The crimes that now carry the death penalty include murder for hire, fatal drive-by shootings, kidnapping resulting in death, and other crimes that, though violent, hardly qualify as terrorism or mass murder.

The crimes that now carry the death penalty include various types of murder for hire, fatal drive-by shootings, kidnapping resulting in death, and other crimes that, though violent, hardly qualify as terrorism or mass murder. Indeed, apart from Dzhokhar Tsarnaev, who was sentenced to die last year for the Boston Marathon bombing, there is not a single other convicted terrorist on federal death row. (Oklahoma City bomber Timothy McVeigh was executed in 2001.)

Instead, it is an assortment of gang members, drug dealers, rapists, and thieves, with varying degrees of blood on their hands. Like at the state level, some of them participated in but did not carry out the killings for which they were sent to die. Abelardo Arboleda Ortiz, a Colombian national, played a partial role in the killing of a drug dealer (his co-defendant, the triggerman, died awaiting execution); Brandon Bernard, then 18, lit a car on fire after his 19-year-old accomplice shot a pair of youth ministers and put their bodies in the trunk; Dustin John Higgs ordered another man to kill three women — the triggerman was given a life sentence.

Like more than 40 percent of the prisoners on federal death row, Bernard and Higgs are both black — a reflection of the stark racial disparities within the federal death penalty system. Of the 62 people on federal death row as of last March, according to the DPIC, 27 were black, eight were Latino, one was Native American, and one was Asian.

It is hard to imagine that Clinton is unaware of the biases in this system she defends; a statistical study ordered by her husband “revealed that 80 percent of the cases submitted by federal prosecutors for death penalty review” between 1995 and 2000 “involved racial minorities as defendants.” Of the revelations in the report, then-Deputy Attorney General Eric Holder said, “I can’t help but be both personally and professionally disturbed by the numbers that we discuss today.”

In many ways, the federal system is a microcosm of the very same pitfalls that have come to define the death penalty as a whole. State death penalty trials are notoriously costly — at the federal level, they cost an average of eight times as much as non-capital trials. While no one has been exonerated from federal death row, some cases have raised serious questions about innocence. In 2001, Bill Clinton commuted the death sentence of an Alabama pot grower named David Ronald Chandler, convicted in a murder for hire, amid grave questions about his guilt — raised in part by the recanted testimony of the triggerman himself. Chandler is now serving a life sentence.

Other familiar problems include mental illness, ineffective assistance of counsel, defendants who have insisted on representing themselves, and a lack of consideration for the trauma and abuse predating their crimes. Among the few people ever executed at the federal level since 1988 was Louis Jones, a black Gulf War veteran convicted for a rape and murder on a military base; Jones had no criminal history and had been diagnosed with PTSD. He died by lethal injection in 2003.

CLINTON’S AWKWARD DEFENSE of the death penalty in Ohio was particularly odd given some of the positive things she could have highlighted about her own record. She might have told Jackson that as a senator, she co-sponsored the Innocence Protection Act, to give states resources to address wrongful convictions. Going back farther to her days practicing law in the ’70s, she helped save the life of an intellectually disabled black man named Henry Giles, who had been sentenced to die by an all-white jury.

These are not accidental omissions. With the general election in view, Clinton is not likely to emphasize any aspects of her record that might be perceived as “soft on crime” (however bankrupt that standard has proven to be).

One need only look to the 2008 presidential contest for an example of how far Democrats will lurch to the right to avoid such a label; as the race went into general election mode, then-candidate Barack Obama suddenly embraced an extreme pro-death penalty stance, slamming the U.S. Supreme Court ruling in Kennedy v. Louisiana, which invalidated death sentences for child rapists in non-murder cases. The move was especially shameless given Obama’s stature as a constitutional scholar — who knew full well that supporting executions for non-homicide crimes was a fairly radical position. (It was also pernicious for a former community organizer on Chicago’s South Side, who was not at all ignorant of the way the systemic police torture of black suspects sent innocent men to Illinois’s death row.)

The past eight years have ushered in a wave of botched executions, the alarming rise of secrecy laws, and a condemned population that is increasingly old, infirm, and dying on death row.

Still, there is something particularly galling about defending the death penalty in 2016 versus even 2008. In 2009 alone, nine people were exonerated from death row. The number of official death row exonerations now stands at 156. The past eight years have ushered in a wave of botched executions, the alarming rise of secrecy laws, and a condemned population that is increasingly old, infirm, and dying on death row. Prosecutorial misconduct and flawed forensic methods have been exposed as never before, including at the federal level. Last year, the FBI finally admitted to a catastrophic mishandling of hair fiber evidence in criminal trials spanning 20 years — including in 32 death penalty cases. (In 14 of those, the defendants have since died or been put to death.)

As a trained defense attorney who once represented clients for violent crimes, Clinton has been long aware of how the criminal justice system works in theory versus reality. That she continues to defend the death penalty given everything we know about it now does not so much betray ignorance as indifference — or else just plain unwillingness to expend political capital on this issue, at least until the moment is right.

This, of course, is at odds with her grand promise to end the era of mass incarceration. In a CNN op-ed the day after he stood to ask his question in Columbus, Ricky Jackson pointed out this contradiction. “The fact that Clinton continues to hang on to this antiquated relic confuses me,” he wrote. “She touts ‘criminal justice reform’ — and much reform is needed — but she misses one of the lowest hanging pieces of fruit.”

Perhaps it is true that Clinton will “breathe a sigh of relief” if and when the death penalty finally ends. But that statement alone speaks volumes about her leadership — and the kinds of reforms she will be willing to deliver in the end. A vow to feel relieved when others finally win the fight against capital punishment is not exactly a profile in courage. Clinton knows full well that the death penalty — as it actually exists — is wrong. She’s just not going to waste any power doing anything about it.

The post Hillary Clinton’s Indefensible Stance on the Death Penalty appeared first on The Intercept.

Jones sent his articles everywhere, from newspapers in Atlanta to Australian political journals. His musings on politics and prison life found a particularly receptive audience abroad, where he had a number of devoted pen pals. Marcum wrote to Jones at the Georgia Diagnostic and Classification State Prison, asking permission to reprint the piece in his jail newsletter.

It was an unusual publication, produced by prisoners and staff alike. But then County Jail #7 was an unusual jail. In the era of “three strikes” and the 1994 crime bill, it was an experiment in corrections, where prisoners raised plants in a greenhouse and tended to buffalo. Marcum had helped design it, firm in his belief that if the state of California was going to build new jails, they should be places for education and vocational training. Instead, Marcum saw the country going in the other direction.

Jones wrote back to Marcum, granting his permission to reprint the article. The two soon began exchanging letters. “We wrote a lot about our childhoods,” Marcum recalled. They found unexpected overlaps in their lives: Jones had grown up on the South Side of Chicago, where his favorite pizza joint belonged to Marcum’s father-in-law. Marcum continued to publish Jones’ writing in the newsletter; he saw it have a positive influence on inmates and staff alike. “Some of the prisoners saw Brandon as a role model,” he said.

But what really connected Marcum and Jones was the search for redemption. In 1966, when Marcum was 19 years old, he had shot and killed his own father with a hunting rifle — the violent culmination of years of domestic abuse against Marcum and his mother. It was Marcum who called the police; later he pleaded guilty and got a sentence of five years to life. When he was released in 1972, he said, “I felt I had to prove my value as a human being.” He was lucky. His parole officer helped him get into college and Marcum began an unlikely career in law enforcement, determined to use his experiences in prison to reform the system from within.

Now a retired assistant sheriff, Marcum acknowledges his journey is unique. But “this was California, not Georgia,” he said. “And I wasn’t black.”

Indeed, for his friend and pen pal across the country, the future held a very different fate. In 1979, Jones and an accomplice, Van Roosevelt Solomon, had killed a white man named Roger Tackett, the manager of a convenience store in Cobb County, Georgia. Jones and Solomon, who was also black, robbed the store, then shot Tackett to death, only to be apprehended immediately by a cop on patrol. The forensic evidence showed that both men had recently fired a gun — both denied shooting the fatal bullet. Both were convicted and sentenced to die.

Jones remained on death row — today he is 72. He no longer publishes articles, and some years back, Marcum stopped receiving letters from him. Then, earlier this month, Marcum came home to a message I left on his landline. Georgia had set an execution date for Jones — the state planned to kill him on February 2.

Marcum was shaken. “I had no idea,” he wrote in an email, agreeing to an interview. He then wrote two letters — one to his old friend, and one to the Georgia Board of Pardons and Parole in Atlanta, asking it to stop the execution.

A cell sits empty on death row at the Georgia Diagnostic and Classification Prison, Dec. 1, 2015, in Jackson, Ga.

Photo: David Goldman/AP

IF JONES DIES by lethal injection on Tuesday, less than two weeks from his 73rd birthday, he will be the oldest prisoner ever executed by the state of Georgia. After more than 35 years facing execution, he embodies what Supreme Court Justice Stephen Breyer last year called the “unconscionably long” time prisoners spend on death row, many of them elderly and infirm. But Jones is also a relic of an earlier era of the death penalty in Georgia, the roots of which remain impossible to ignore.

To date, the oldest prisoner executed in Georgia was Andrew Brannan, a 66-year-old Vietnam veteran with PTSD, who was killed last January. His was the first of five people executed by the state in 2015 — among them, an intellectually disabled man, a man with claims of innocence, and a woman sent to die for a murder her boyfriend carried out and who had became a poster child for rehabilitation.

If 2015 reaffirmed Georgia’s reputation for controversial executions, it also quietly revealed an opposite trend. “Despite the relative flurry of executions,” a Georgia legal website, the Daily Report, noted last December, “the other end of the death penalty process has slowed significantly.” Georgia did not send a single person to death row in 2015 — a development the Report called the “newsmaker of the year.” The turn away from capital punishment is part of a larger nationwide trend, even across the most active death penalty states. “The same thing that is happening in Georgia is also happening in Texas and Virginia,” Robert Dunham, executive director of the Death Penalty Information Center, told the Report.

Bridging the disconnect between the “new Georgia,” as Dunham put it, and the state’s recent spate of troubling executions are people like Jones. “We have this very strange situation now in which these people sentenced to death a long time ago — and who managed to get through all the stages of review — are now being executed,” said Stephen Bright, president of the 40-year-old Southern Center for Human Rights in Atlanta. “They almost certainly would not be sentenced to death today.” (In court filings, lawyers for Jones point out that death sentences for killings carried out in the course of a robbery have “fallen into complete extinction.”) Bright describes them as “zombie cases” — convictions that “remind us of just how unfair” the system used to be.

Indeed, it was not until 2005 that the state opened the office of the Georgia Capital Defender, seeking to remedy a decades-old problem: defendants on trial for their lives with grossly inadequate representation. “At the time of Jones’ case and so many others,” Bright said, “any lawyer who was a member of the Georgia bar could be appointed to represent someone in a death penalty case.” With no meaningful funding for indigent defense — and a sloppy, ad hoc network of public defender offices throughout the state — death sentences were often handed out “not for the worst crime, but for the worst lawyer,” as Bright wrote in a 1994 article for the Yale Law Journal.

The problem was especially pronounced when it came to race. In 1974, five years before Jones landed on death row, a Georgia man named Wilburn Wiley Dobbs was sent to die for a murder carried out during a robbery. His court-appointed lawyer made no effort to save his life — in fact, he referred to his black client as “boy” during trial, later admitting that, as the grandson of a slaveholder, he believed African-Americans to be “inferior to whites morally and intellectually.” Dobbs’ death sentence was overturned in 1997, yet he has never had a resentencing hearing. At 66 and sick with prostate cancer, he will almost certainly die behind bars.

In a different 1974 case, a Georgia man named John Young was ineptly represented by an attorney who not only was later disbarred, but encountered his former client on the prison yard at the county jail, where the lawyer had been sent on drug charges. “Being born black in America was against me,” Young said before dying in the electric chair in 1985. “Y’all cry out that America was built on Christianity. I say it was built on slavery.”

Evidence that the state’s death penalty was racially biased was a major contributing factor that led to Furman v. Georgia, the landmark Supreme Court case that in 1972 suspended the death penalty across the country. (The plaintiff, William Henry Furman, was a black man deemed “mentally impaired” by a state psychiatrist, who had been convicted in a one-day trial in Savannah.) Furman forced states to amend their death penalty statutes to avoid the “arbitrary and discriminatory” imposition of capital punishment.

Just four years later, the Supreme Court upheld Georgia’s new death penalty law in Gregg v. Georgia. Yet the law showed clear continuity with decades past: Of the first dozen people to die in the electric chair following Gregg, nine were black.

Bright still bristles at the “arrogance of that; to think that all of the problems identified in Furman — the racism, the consequences of poverty — to think that you could have that fixed in four years was just so incredibly preposterous.”

Jones was sent to Georgia’s death row three years after Gregg. Among the people there when he arrived was another black man named Warren McCleskey, who had been convicted of murdering a police officer in the course of an attempted robbery in Atlanta the year before. McCleskey went on to appeal his conviction all the way to the U.S. Supreme Court, on the basis that Georgia’s death penalty system was racially biased. His evidence was a now-famous 1983 empirical survey of Georgia murder cases during the 1970s, which found that black defendants convicted of killing white victims were far more likely to be sentenced to death.

But in its 1987 ruling in McCleskey — one of its most derided and consequential in death penalty law — the Supreme Court concluded that racial bias in the application of the death penalty was not unconstitutional unless it could be proven to be intentional. The effect was far reaching; in the New Jim Crow, Michelle Alexander writes that the ruling “immunized the criminal justice system from judicial scrutiny for racial bias.”

Prisoners stand while being processed for intake at the Georgia Diagnostic and Classification Prison, Dec. 1, 2015, in Jackson, Ga.

Photo: David Goldman/AP

AFTER TEN YEARS facing execution, Jones got a lucky break. A federal court overturned his death sentence, finding that jurors had consulted a Bible during their deliberations. (His codefendant, Solomon, was less fortunate: He died in the electric chair in 1985.)

As he awaited a resentencing hearing, Jones began a life on death row. He read voraciously and soon began writing. His essays were both autobiographical and sharply political, and he wrote a lot about race, inspired in large part by his own upbringing.

Jones was born in Indiana and spent his childhood in Chicago, where his family life was unhappy and abusive, according to the findings of a defense investigator. Jones described “extremely violent beatings” by his uncle, as well as sexual abuse at the hands of a cousin when he was 5 years old. One friend and neighbor recalled that his “arms and face were always covered in bruises.”

When Jones was 13, he robbed a milkman and was sent to a reformatory outside the city that sat on some 900 acres of farmland, where boys underwent military and religious training. Then at 15, he was sent to Sheridan, a state reformatory where he said he was beaten, which became embroiled in scandal soon after his release. In 1961, the superintendent and six staffers were fired following reports that boys at Sheridan were “beaten, confined naked in unlighted cells, and put on bread and milk rations,” as described by one Illinois historian. An investigation also found that the younger boys —15 years and under — were preyed upon sexually by the older ones, including men in their 20s.

Later, according to court documents, a clinical psychologist would determine that Jones had a “lifelong pattern of behavior consistent with childhood-onset bipolar disorder,” and signs of PTSD rooted in “physical, sexual, and emotional trauma.”

After an unsuccessful stint in the military at 19, Jones spent his early adulthood in and out of jail. He admitted to investigators that he “sometimes would get charged with something, make bond, change his name, and never show up again.” He married twice; his wives described him as “unstable” and physically abusive, including to his children.

In his letters to people like Marcum, Jones would occasionally express regret at his fractured relationships with family, saying he understood why they did not keep in touch. In his published essays, which he often began with a passage or quote from a newspaper article, he sometimes shared his memories of relatives as part of a broader critique of society.

In one piece, a local report on the detrimental effect of carrying heavy backpacks reminded Jones of a time he went to pick cotton with relatives in the Mississippi Delta. His aunt suffered crippling back pain, he wrote. “My question is, when will a doctor in America show concern for those countless Black backs still bent with the pain and weight of American slavery past and present?”

In another essay, Jones discussed a boating program geared toward African-American kids from Philadelphia. As a lover of boats, he was a devoted subscriber to WoodenBoat (“I read every issue cover to cover”). He wondered why the magazine had not run an item about the Philadelphia program, which he considered very important.

In 1996, the Canadian New Internationalist published an essay by Jones that would prove particularly moving to people. It described the small ways he sought to ward off the intense sensory deprivation of death row: collecting scraps of wood to be able to feel their natural texture, picking a bay leaf out of one of his meals and taking it back to his cell, where “I washed it off,” he wrote, and carefully stored it for months.

One reader, Sue Bond, remembers the essay vividly — it was one of the first by Jones she ever read. More than 20 years later, she has struggled to solicit support for him over Facebook. She still has all his letters, she told me over email. “I can’t bear to open that box right now. It is too painful, knowing that he may be executed very soon.”

The same essay prompted an artist in the U.K. “to send him one of my detailed textured landscapes and lead him on a ‘walk’ through it, encountering the sounds and textures along the way,” as she wrote in an email. She too forged a friendship with Jones, as did her son, John. (This month, John set up a website to solicit clemency letters for the Board of Pardons and Parole.)

As his 1997 resentencing trial approached, Jones’ readers galvanized to try to save his life. Readers from the U.K. and Australia volunteered to testify via video on his behalf. In a letter to the Georgia Indigent Defense Council, Michael Marcum described the “value in Brandon’s life and in his writing,” how it conveyed to “young offenders who are still at risk of committing violence upon release from our jails into our community … that they can retake control of their lives before they further harm others and themselves, and they can make a lawful place in our society.”

But in his closing statement on the day of the resentencing hearing, the prosecutor said that for all of his writings, Jones had shown no remorse for his crime. “He’s got all kinds of pen pals who apparently would do anything for him,” he said, and yet none of them had sought out the victim’s family to seek their forgiveness on his behalf. “So where is the remorse? Is not that the kind of conduct that deserves the death penalty?”

Defense attorneys asked for a mistrial, saying the statement violated Jones’ Fifth Amendment right against self-incrimination. But they were denied. After reaching an “impasse” due to the misgivings of a single juror, the judge ordered the jury to continue deliberating. A few hours later, Jones was once again sentenced to death.

FOR YEARS, JONES RELIED more on his relationships with readers than he did on his family. He seldom received visits. Nor did he have many friends in prison — at least according to one prison guard who got to know him on death row. Bobby Allen was 20 when he went to work at the Georgia Diagnostic and Classification Prison in the 1980s. He remembers Jones as well-behaved. “I never had a moment’s problem with him,” he told me. Yet Jones wasn’t particularly well-liked among the guards or counselors, Allen says, or by his fellow prisoners for that matter. Spending most of his time writing in his cell, his attitude seemed to be that “he had a superior intellect over everybody.” Part of what Allen found vexing was that Jones “didn’t see himself as an inmate. He didn’t see himself as a lawbreaker.”

Allen was at the prison on the day the state executed Jones’ codefendant, Van Solomon — one of 10 people killed by the state of Georgia during his years working on death row. Allen’s duties included escorting the condemned prisoner from his cell — first to the medical unit “for a full physical,” and then down “the last mile,” to the holding cell where the prisoner awaited execution. One of the worst parts, he remembers, was passing the electric chair, which prison officials covered in a white sheet. “I have nightmares about it even today,” he said. He often struggled to reconcile the men he knew on death row with the crimes they had committed. “I believe that I saw some of these men change,” he said.

Allen can’t speak for Jones, he says. “I don’t know the man he is now.” But, he said, “I can say that the people that we did execute might not have been the same person he was when he committed the crime.”

As he aged in prison, Jones lost some of his longtime supporters. In 2001 he cut ties with the Australian editor of a radical leftist magazine after it refused to publish a column following the 9/11 attacks. In it, Jones expressed sorrow and patriotism while condemning any retaliatory violence against Muslims in their homes or mosques. The essay included a drawing of an American flag he had hung in his cell “at symbolic half mast, midway between the floor and ceiling.” In response, the editor, who was white, accused him of “wrap[ping] himself in the flag under which the white ruling elite in North America enslaved black people.” Jones was deeply offended.

Jones’ most recent writings reveal a man in decline. In a 2013 column addressed to the Georgia prison commissioner, he describes being told he must remain shackled while eating and being denied a free hand to clean himself after using the bathroom, policies that “rob medical prisoners of our human dignity.” Other posts are less lucid — bitter missives about prison policies, or defective purchases at the prison commissary.

But last month, Jones received a visit that he never expected. His four children came to see him in prison. Now in their 50s, they barely knew him growing up. “It was the first time that all four of us had seen him together,” his son David told me over the phone from Texas on Friday. The trip to Georgia included a contact visit — “the first time I ever touched his body.”

For decades, David refused to visit his father. “I felt he was dead,” he said. Jones himself seemed to have given up on life. Until his children visited, David said, Jones planned to reject the clemency process. He did not want to give the state of Georgia the satisfaction of hearing him plead for his life. But in the visiting room that day, David thinks his father realized “he has a reason to live for his own family. He stood up and walked to the end of the visiting area with each of his children, one by one. I could see them crying and holding each other.” In recent weeks, “My children have been talking to him for the first time in their lives,” David said. If the state of Georgia kills Jones on Tuesday, they will lose the grandfather they have only just met.

On Saturday, David went back to Georgia to see his father again. On Tuesday, he will represent his family, asking once more for the state to spare his life. “I’m not oblivious to the pain that’s been created by his crime,” he says. “But many lives got lost in 1979, not just one. Today, he has a lot of people who love him.”

Top photo: A prisoner faces the wall inside the Georgia Diagnostic and Classification Prison Tuesday, Dec. 1, 2015, in Jackson, Ga. 

The post Facing Execution at 72, Georgia’s Oldest Death Row Inmate Exposes Death Penalty’s Racist Roots appeared first on The Intercept.