Category Archives: Georgia News

Unring-ing the Bell

A recent news report tells us that Georgia lawmakers are once again looking at the way the state deals with criminal records, especially those that have been expunged.  The problem is that even when a criminal record is expunged it often ends up on someone’s radar.  Once that happens, there is very little that can be done to repair the damage done to the person’s reputation and prospects for employment or some other opportunity.  As they say in the law, you cannot “unring the bell”.

What caught my attention from this news report, however, is the following remark made by a state senator here in Georgia as to the reason why he decided to look into the expungment law in the first place:

“As a conservative I believe once somebody has paid their debt to society for a crime they’ve committed–they’ve been punished–then what I want that person to do is climb the economic ladder of success, become a productive citizen, pay taxes like all of us do and not go back to a life of crime,” McKoon explained. “[It’s] hard to do that if we place these barriers to employment.”

There are many troubling assumptions that are contained in this statement.  The senator, like most folks in the U.S., equates productivity with economic output so that a person who makes more money is considered more productive than the person who makes less money.  This, of course, is untrue. There are endless examples of why this is so.  Professional athletes are but one such example, investment bankers, another.  That most Americans  subscribe to the theory espoused by the senator  is one reason why income inequality in this country continues to worsen over time.  Along the same lines is the myth, implicit in the above statement, that everyone has a fair shot at “economic success” regardless of his or her background or circumstances.  This is also untrue.  And again, endless examples abound.  Indeed, one need look no further than the expungement “problem” where individuals with expunged criminal records are routinely denied employment and other opportunities.  It is no coincidence that these individuals are generally minorities who have led  hardscrabble lives.  The criminal record is just the hook on which the employer needs to hang his hat before he shows his applicant the door.  Finally, there is the assumption that a person who commits a crime is hardwired for this kind of activity and that this person will change only if we show him the way (i.e., climbing the economic ladder of success).  It is true that the majority of individuals who commit crimes do so because they need to not because they want to, but this “need” is borne from one’s circumstances not from one’s genetic makeup.

I do not mean to suggest that there is no room for advancement in the United States or other countries that share the general belief that one’s worth is measured in dollars or pounds.  But that room is far smaller than what we are often led to believe is the case.  And the sooner we realize that, the sooner we can make the case that present state of affairs cannot be sustained over the long term and must be changed.

Turning the Tables

Photo Courtesy of the Asia Society. From the Asia Society website: A Japanese American posted this banner on his store front the day after Japan attacked Pearl Harbor and shortly before he was sent to an internment camp. Image: Dorthea Lange, National Archives.

Please allow me the opportunity to opine on something non-Padilla related.

Georgia, my state of residence, is on the cusp of enacting legislation that would provide broad and unprecedented authority to law enforcement to question, stop and arrest residents who are suspected of being in this country illegally.  That such a measure has come to fruition should come as no surprise to most.  Hostility toward one or another unfavored class of individuals is a time-honored American tradition, especially among power-hungry politicians and shallow-thinking citizen-reactionaries.  Nor is Georgia the first state to come this close to providing the constable such unbridled authority to detain and harass.  Arizona has already gone down the same path, but with little to show for it besides rhetoric and litigation.  There is little doubt that Georgia won’t also go the way of Arizona on this soon-to-be enacted immigration measure.  It will.

But the concerns  about racial profiling and states’ rights that invariably arise when debate occurs as to the wisdom of these sweeping new laws are, it seems to me, misplaced.  Racial discrimination is as intractable a societal malaise as poverty and crime.  This is true regardless of whether the society is founded upon the principles of capitalism and democracy, as ours assertedly is, or, like modern-day Russia and China, quasi-communism and authoritarianism.  Arguing against these laws then by claiming, even reasonably, that they are discriminatory is akin to arguing against compelled homelessness because such a condition is unjust and unfair.  Most reasonable minds won’t differ on that, but some will, and if these are the same folks who control the institutions of our government, then good luck to you.

Discussion should instead focus on how the recent anti-immigrant legislation affects the viability of this country’s self-described role as the “Leader of the Free World” and its foundation as an open, democratic society.  If, according to the latest U.S. Census findings, it is true that whites will soon constitute a statistical minority in this country, displaced by Hispanics and Asians, then any official effort to discriminate and expel members of this soon-to-be majority smacks of apartheid.  If that is indeed the case, then Americans need to have a sustained, serious and open discussion as to the direction of this country and the relationship, in all senses of the word, that should prevail between a white minority and non-white majority.  I can think of at least one other country that is currently engaged in such a debate: Israel.  Only when these fundamental issues are aired in public and their implications seriously debated (I make no predictions as to which side will prevail in such a debate) can this country move beyond the current wave of reactionary, anti-immigrant sentiment.

On the Seventh Day He Rested

For those of you who have been following the strike by inmates in Georgia, it is perhaps late in the day to report that the strike is over.  It is still unclear why the strike came to an end.   No promises or concessions were exacted from Georgia prison authorities by the inmates consistent with their initial demands, at least none that have been reported by news outlets.  And the Georgia Department of Corrections has been mostly mum on the entire event.

The Atlanta Journal-Constitution has reported that while the strike has now ended, there is a likelihood that it will start up again if conditions in the prisons do not change.  This came from an inmate named Mike who is an unofficial spokesperson for the inmate-strikers.  He apparently also warned that the next strike would be a violent one should it become a reality.  Yet whether “Mike” actually speaks for any of the striking prisoners is an open question.  Among the statements he made to the AJC was that the reason why the prisoners chose December in which to carry out their strike is because it would be colder at that time and therefore keep tempers of the prisoners from flaring.  An unusual and almost movie-like sentiment to say the least.

It appears as if the prisoners involving in the now-defunct strike plan on filing a lawsuit to challenge the constitutionality of the conditions of their incarceration.  For those on the outside who might be assisting in this effort, I point you to the Jailhouse Lawyer’s Manual, published by Columbia University’s Human Rights Law Review.  I have found this publication to be thorough and insightful.  Best of all, it can be accessed for free by clicking here.

I would encourage anyone who has any specific questions about filing a prisoner right’s lawsuit to email me directly or post your question in the comments below.  Also, I would encourage those who know of anyone who has been involved in the strike, either inside or outside the prison cells, to share your story with others in the comments section below.

Day 6 and Onward

Associated Press. The uprising at Attica Prison began on Sept. 9, 1971 and, four days later ended in bloodshed as NY State troopers stormed the prison, killing 10 hostages and 29 inmates.

Today is, I believe, Day 6 of the “strike” by inmates at various Georgia state jails.  Stories on the strike have focused mostly on the inmates’ use of contraband cellphones as a means to coordinate the strike among the various facilities, as reported in the Times.  This, however, is a side issue at best, and should not detract from the significance of the strike itself and, of equal importance, the reasons why it even came about in the first place.  As to the latter, I provide here the list of demands made by the striking inmates that are currently on the table and which the Georgia Department of Corrections has to this date still refused to acknowledge:

A LIVING WAGE FOR WORK: In violation of the 13th Amendment to the Constitution prohibiting slavery and involuntary servitude, the DOC demands prisoners work for free.

EDUCATIONAL OPPORTUNITIES: For the great majority of prisoners, the DOC denies all opportunities for education beyond the GED, despite the benefit to both prisoners and society.

DECENT HEALTH CARE: In violation of the 8th Amendment prohibition against cruel and unusual punishments, the DOC denies adequate medical care to prisoners, charges excessive fees for the most minimal care and is responsible for extraordinary pain and suffering.

AN END TO CRUEL AND UNUSUAL PUNISHMENTS: In further violation of the 8th Amendment, the DOC is responsible for cruel prisoner punishments for minor infractions of rules.

DECENT LIVING CONDITIONS: Georgia prisoners are confined in over-crowded, substandard conditions, with little heat in winter and oppressive heat in summer.

NUTRITIONAL MEALS: Vegetables and fruit are in short supply in DOC facilities while starches and fatty foods are plentiful.

VOCATIONAL AND SELF-IMPROVEMENT OPPORTUNITIES: The DOC has stripped its facilities of all opportunities for skills training, self-improvement and proper exercise.

ACCESS TO FAMILIES: The DOC has disconnected thousands of prisoners from their families by imposing excessive telephone charges and innumerable barriers to visitation.

JUST PAROLE DECISIONS: The Parole Board capriciously and regularly denies parole to the majority of prisoners despite evidence of eligibility.

The Black Agenda Report has the full press release issued by civilian activists supporting the strike including Elaine Brown.

If you have a friend, relative, or loved one who is participating in the strike whether as a prisoner or as civilian, please share your story with us below.

Padilla Strikes Again

A recent decision by the Georgia Court of Appeals concludes that Padilla’s ineffective assistance of counsel analysis applies to an attorney’s failure to advise a client about sex offender registry requirements.  The case is Taylor v. State, 2010 WL 2684051 (Jul. 8, 2010) and can be downloaded here.  In essence, the Taylor court held that even if sex offender registration requirements could be considered a “collateral consequence” of a conviction, “the failure to advise a client that his guilty plea will require registration is constitutionally deficient performance,” much like an attorney’s failure to advise a client about the risk of deportation associated with a guilty plea under Padilla.  Id. at 4.

Because the appeal was pending while the U.S. Supreme Court decided Padilla, there is no discussion about retroactivity.  (Sorry!)

It’s unclear at this point whether the State will seek discretionary review from  the Georgia Supreme Court.  And any developments on that front will be reported on the blog.

The (Theoretical) Right to Counsel

A lawsuit was filed on Tuesday in Fulton County by several law firms and public interest organizations seeking to revamp the State’s public defender system, in particular its ability to supply effective attorneys to individuals in need of appellate representation.  Some of Georgia’s most prominent law firms are litigating this case, including the Southern Center for Human Rights; Garland, Samuel and Loeb; and Bondurant, Mixson & Elmore.  Not to mention my good friend and colleague, Stephen R. Scarborough.

The complaint is available here (PDF – 2.87 MB).

“It is easier to build strong children than to repair broken men”

In today’s Times, John Schwartz profiles Tom Dunn, a death penalty lawyer turned middle school teacher in Atlanta.  Dunn worked at the Georgia Resource Center defending clients on death row until he himself was on death’s bed, suffering a catastrophic illness in 2006.  That’s when he called it quits and decided to devote his time and energy toward teaching middle school students.  As the Times put it, Dunn “having seen too many people at the end of lives gone wrong … want[ed] to keep these students from ending up like his former clients.”

It’s a meaningful story and I encourage you all to read it, here.

Intermission is Now Over

Sorry for the long delay in posting.  Things have been a bit hectic around here but I hope to continue posting regularly.

Here’s what you may have missed in my absence though:

A federal judge in the Northern District of Georgia sentenced Joshua David Lowe, an ex-jail sergeant at the Polk County Jail, to 21 months in prison for beating an inmate who was strapped to a restraining chair.  A fellow jailer and witness to the beating said that the inmate was “spewing blood” and that there was “blood everywhere.”  Lowe pleaded guilty, which, perhaps, explains the unusually lenient sentence.  And let’s not forget that Lowe is a law enforcement officer, after all, who is nothing but well-intentioned.  The case was prosecuted by the United States Attorneys Office, one of several that has been brought by the feds in recent moths (see here and here).  Of course, police brutality against inmates, whether it’s of the violent or non-violent variety, are common, and one wonders why the feds don’t pursue more of these cases.  Because what happens at the county jail stays in the county jail.  Ultimately, it is up to the better officers, those with a conscience and a heart who see their colleagues go to town on an inmate, to break this cycle of secrecy and violence.

Texas continues to make its mark as the capitol of injustice in criminal and death penalty prosecutions.  The 2005 execution of Cameron Todd Willingham who was convicted of setting fire to his home and killing his three children has returned to the media spotlight after Texas Governor Rick Perry took some swipes (some would say unwarranted) at Willingham, calling him a “monster” and a “bad man.”  This came after Perry pulled some strings last minute to change the composition of an official forensic science commission that was about to issue a report on whether Willingham really did commit arson and murder his three kids.  Grits for Breakfast has the story here.  Texas injustice also made news with the release of Richard Miles, who was serving 15 years in prison for shooting two individuals, one of whom died.  The release came after Centurion Ministries, a prisoner advocacy group, uncovered police files that show that someone else – not Miles – had actually confessed to the shooting.  Evidence that was withheld by the Dallas County District Attorney’s Office headed by Craig Watkins.

No Camping Here

In a sort of deja vu moment for Georgia, courtesy of its neighbor to the east, Florida, controversy has erupted over an encampment of sex offenders in Cobb County (north Georgia).  After the Associated Press reported on the existence of the camp yesterday, officials in Georgia ordered the camp dismantled and moved citing “liability issues.”  I don’t think it would be a surprise to discover more camps like this one in Georgia or other states with strict sex offender residency laws.  Again, one has to wonder about the wisdom of segregating any and all sex offenders from the general population.  Why not designate an island in the mold of Guantanamo and shuttle all our country’s sex offenders there?  Again, one must ask what our government officials are aiming for with their sui generis policies on sex offenders.  Obviously, it isn’t reintegration into society or rehabilitation.  Then what is the point of having them released from jail at all?  Does allowing a convicted sex offender to linger on the outskirts of society make him or her any less dangerous than with a policy of perpetual banishment?

The AP article can be found here.  Today’s story on the closing of the camp can be found here, courtesy of the AJC.

“The Machinery of Death” in Georgia and Beyond

Over the past week, the death penalty has received considerable media coverage here and across the nation.

First came news that the Georgia Public Defender Standards Council had asked Fulton County to repay the State of Georgia for fees and expenses that were incurred in defending Brian Nichols, the escaped prisoner who went on a murderous rampage in downtown Atlanta, killing a judge, among other public officials.  This comes on the heels of a recent, somewhat critical report in the AJC of the growing cost of Nichol’s legal defense, which I wrote about here.  At the same time, according to the AJC, the State has crafted plans to cut the budget for funding public defenders in Georgia, which could result in furloughs of a month or more.

Over at the Times is a story on the growing number of judges who are writing dissents that are critical of the death penalty and the manner in which it is being imposed.  Here is an excerpt from that article:

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

The full story is available here.

And today comes news that the Supreme Court has essentially given a reprieve to Troy Davis, who is on death row in Georgia after having been convicted of killing an off-duty police officer.  In an unsigned one-paragraph order, the Supreme Court sent Davis’ case back to the trial court and instructed it to conduct a factual hearing to determine “whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence.”  The order was met with a dissent by Justice Scalia (joined by Justice Thomas), in which he says, among other things, that the trial court was being sent on a “fool’s errand.”  Justice Stevens, joined by Justices Breyer and Ginsburg, countered with their own take on the law, stating that “[t]he substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”

Liptak of The Times has the story here, the AJC, here, and SCOTUS blog, here.

Finally, yesterday saw the start of the trial of Sharon Keller, the Texas judge who is accused of having intentionally denied a death row inmate access to the courts.  For those of you who are unfamiliar with the case, here are the basic facts, as per the Times:

On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case.

Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf.

Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed.

The full story is here.  Grits for Breakfast provides coverage of the Keller case, links, and some interesting commentary here.

My thoughts on these stories and the general death penalty brouhaha is as follows:

(1) Like most of the hot button issues, those in power who are in a position to effect change (politicians, judges, lawyers, journalists), even those who are opposed to capital punishment, are not likely to take action.  Why?  Because it’s another issue that can be, and has been, used to divide the masses, generate controversy, etc., which, in turn, means these individuals get to maintain their positions of power.

(2) The notion that judges must and do slavishly follow and apply the law is a false one.  The corollary being that there is a moral component to the law.  Is there any other reason why we consistently refer to the Supreme Court as having a liberal and a conservative wing?   Anyone who tells you differently is being disingenuous at best and manipulative at worst.

(3) Criminal defendants and their attorneys are shafted on a regularly basis by everyone and anyone who cannot fathom the reason why people commit crimes in the first place.  Hint: it’s rarely if ever because that person is predisposed to committing criminal acts.

- AW