Executing the Mentally Ill: Texas Edition Will a legally insane man become number 484?

By Kali Cohn
ACLU of Texas Intern

On Friday, the Texas Court of Criminal Appeals granted a stay for Marcus Druery, who was being readied for execution in Huntsville this Wednesday. Mr. Druery’s faces execution for his 2002 murder of Skyyler Browne, who he shot repeatedly and whose body he subsequently burned. Skyyler’s death was a tragic loss to his family and friends, as well as an injustice to the community.

While Mr. Druery’s acts were heinous and tragic, his execution would layer another injustice on this tragedy. He suffers from schizophrenia and, because of his mental illness, he does not believe that his execution date applies to him or that he will be executed because of a crime that he has committed.

Since the 1980s, the Supreme Court has prohibited the government from executing prisoners that are insane – but it left the states to decide how to define insanity. And although a 2007 Supreme Court ruling clarified that an inmate lacking some “rational understanding” of the reason for his or her execution cannot be executed, the determination of an inmate’s “rational understanding” is at the court’s discretion to decide.

The stay follows the Brazos County District Court’s denial of a motion to hold a full hearing on Mr. Druery’s claims of competency last week – a decision which, in effect, refused Mr. Druery’s lawyers the opportunity to show that he is not competent enough to understand his execution, despite his state-diagnosed schizophrenia.

But the Texas Court of Criminal Appeals has made a move toward justice, and we wait to find out whether it will permit a full and fair hearing on Mr. Druery’s competence.

As we await the Court’s decision, we hope that we need not bear witness to a 484th cruel and unusual miscarriage of justice in the name of Marcus Druery.

Behind the numbers

In many ways, news about the death penalty in Texas this year has been heartening. 2011 saw the lowest level of Texas executions in the last 15 years. It matched 2010 with the lowest number of new death sentences since Texas’s death penalty was reinstated in 1974. It even reduced the number of counties sentencing inmates to the death penalty to only 6 of Texas’s 254.

In sum: support for the death penalty in Texas is waning – and those numbers reflect that.

But those numbers also mean that Texas is still putting to death 30 percent of all of the inmates executed in the United States, including individuals suffering from mental disabilities and mental illness.

Follow us on Twitter: @crimjusticetx @aclutx

Private Prisons Pose Problems for Taxpayers

News Reports Document Bad Management and Financial Concerns; States Like Texas Lead the Way in Finding Alternatives to Incarceration

By Ryan Meltzer
ACLU of Texas Intern

Back in June, we published a post detailing the Christian Broadcasting Network’s critical coverage of the private prison industry. A little over a week ago, CBN rebroadcast its investigative report, titled Selling Prisons “for Profit,” exploring the miserable conditions in private prisons as well as the ethical implications of treating prisoners as dollar signs.

Although our previous post quoted at length from the accompanying CBN print story, the television broadcast (available for streaming here) includes some compelling footage:

  • Prison security cameras capture a brutal inmate-on-inmate fight while a guard watches from the security of an enclosed room.
  • An investor presentation by Corrections Corporation of America (CCA) boasts of corrections as a “recession resistant” industry, with high recidivism rates making for a good investment.
  • Jesus Cardenas, a former inmate at Texas’s own Mineral Wells Pre-Parole Transfer Facility, recounts a handful of the horrors he witnessed while in custody.

Texas Prison Bid’ness, Grits for Breakfast, and the Private Corrections Working Group have extensive coverage of the problems that have plagued Mineral Wells over the years, but suffice it to say that CCA, the private company that operates the facility, has been ineffective at preventing escapes, disturbances, and contraband smuggling. Cardenas’s testimony certainly doesn’t help CCA’s image: Describing the stark difference in security between Mineral Wells and the public prison where he was first held, Cardenas recalls “at least one or three [inmate fights] a day” and reports that known gang members routinely stored cell phones, drugs, and weapons in their cells.

If it wasn’t bad enough for the image of the private prison industry for CBN anchor Pat Robertson to lead the story with a comparison of the U.S. to jail-happy China and Russia, CBN’s rebroadcast coincided with a raft of bad news for private prisons and their investors.

First, the Conroe Courier reported that a federal grand jury is investigating the construction of two privately run facilities, the Joe Corley Detention Center and the Montgomery County Mental Health Treatment Facility, based on allegations of corruption. The article explains that Montgomery County is at risk of losing its tax-exempt status on the $45 million in bonds it issued to finance the Joe Corley Detention Center, as the facility is currently housing only federal prisoners. If the county loses its tax-exempt status, County Judge Alan Sadler is quoted as remarking, “the tax implications would be huge.”

Next, the Brownsville Herald covered the dispute between Willacy County District Attorney Bernard Ammerman and Willacy County Judge John Gonzales over the county’s debt from the Willacy County Regional Detention Center. While Judge Gonzales maintains that the county has insulated itself from creditors by financing the prison through a public facility corporation, Ammerman counters that Willacy County will be liable to bondholders if the center fails. By any estimate, the county’s debt is between $75 and $189 million, so in the event of a default, the county could potentially see a sharp drop in its bond status—a catastrophic economic turn of events for the County’s 22,000 residents.

Most recently, the New York Times continued its investigation of Community Education Centers (CEC), the New Jersey-based corrections company that operates a number of penal institutions in Texas. Having exposed chronic problems with violence, escapes, contraband, and poor rehabilitative services at CEC facilities, the Times has turned its attention to CEC’s tumultuous finances. According to records filed in a lawsuit against CEC by its former chief financial officer, the corporation has faced such severe financial turmoil over the last four years that it considered filing for bankruptcy in 2010. What, you might wonder, could have so shaken a supposedly “recession resistant” industry that a company like CEC is at risk of bankruptcy? Simple: When your business is dependent on high incarceration rates, sensible policies that reduce prison populations are going to hurt your bottom line. Indeed, CEC’s financial problems didn’t come from their New Jersey contracts, which have grown over the past decade; rather, the Times writes, “Community Education has . . . run into trouble after an aggressive expansion foundered in states like Alabama and Texas.”

Arguably more troubling than the possibility that CEC has been on the brink of financial ruin for years, though, is the fact that in Texas, government entities are expected to scrutinize the qualifications of corporate bidders before awarding a private prison contract. (For a sample jail-related Request for Proposal issued by Harris County, see here.) Because CEC has apparently received new and renewed contracts in Texas during the time frame examined by the Times, this suggests one of two things: Either CEC was less than honest in its financial accounting, or Texas officials enamored of corrections privatization chose to ignore the grim truth behind the numbers. In light of such reports, it’s clear that the CBN story has only just scratched the surface of prison privatization.

Stand with the ACLU against prison privatization and join our Community Action Network today!

Students shouldn’t fear going back to school.

Most of us have all been on the receiving end of bullying at least once, but that doesn’t mean we should let today’s youth continue to be bullied, and the Texas Legislature agrees!

State lawmakers passed a law creating new guidelines concerning bullying which school districts must implement by the time school starts this fall.

The new law requires school boards to adopt policies that:

  • prohibit bullying
  • stop retaliation against any person including a victim, witness, or another person, who in good faith, provides information concerning a bullying incident.

The new law requires schools to:

  • notify a parent or guardian of a student who is bullying or bullied within a reasonable amount of time after the incident
  • provide steps students should take to obtain assistance and intervention in response to bullying
  • make available counseling options for a student who is victim of or a witness to bullying or who engages in bullying
  • establish procedures for reporting bullying, investigating reports of bullying, and determining whether bullying occurred
  • prohibit punishment of a student who, after an investigation is found to have been a victim of bullying, use reasonable self-defense in response to the bullying
  • develop a process for bullying cases involving special education students in accordance with the Disabilities Education Act.

Parents and guardians no longer have to worry about being in the dark if bullying happens or students being punished for self-defense against bullies!

Help us protect youth rights by joining the ACLU of Texas CAN (Community Action Network). We need people like you to raise awareness in your town!

Investigate Border Agency, Stop Abuse at Ports of Entry

By Vicki B. Gaubeca, ACLU of New Mexico and Krystal Gómez, ACLU of Texas

A year ago this week , a young woman working with the ACLU of New Mexico arrived at the Customs and Border Protection (CBP) offices at the Ysleta-Zaragoza port of entry in El Paso/Ciudad Juárez. She was there to meet with a New Mexico State Police sergeant investigating her allegations of sexual assault by a Border Patrol agent that occurred while she was detained at a fixed checkpoint in NM. The meeting had been arranged in advance with CBP officials at the port of entry by the NM State Police, and CBP was made aware of the nature of the meeting.

What happened next frightened the young woman  so much that she dropped the investigation. This story, along with other stories of CBP abuse, will be featured tonight in a PBS special report on the program Need to Know. (Please see local listings for air times.)

This case is only one of many stories of abuse and impunity at the hands of CBP officers. The ACLU recently documented eleven cases of abuse at official ports of entry in a letter to the Office of Civil Rights and Civil Liberties at the Department of Homeland Security (DHS). The cases come from ports of entry along the U.S.-Mexico border, and most involve U.S. citizens. The letter calls for an investigation into the cases and increased oversight of DHS Customs and Border Protection, an agency that has swelled in size to become the largest federal law enforcement agency in the country.

This PBS Need to Know documentary is the second installment in the series, “Crossing the Line,” that aired April 20 and focused on deaths and serious injuries caused by CBP officials.  The April 20th segment told the story of Anastasio Hernandez-Rojas, a 42-year-old father of five who, in May 2010, died after a group of CBP officers beat him and shocked him with tasers at the San Ysidro port of entry near San Diego.  Live videotape of the beating shows bystanders calling on the officers to stop beating Hernandez-Rojas, hogtied and lying prostrate on the ground, as he screamed in pain and pled for his life.

On July 24-26, 2012, a delegation that includes members from ACLU-San Diego and Imperial Counties, ACLU-New Mexico and ACLU-Texas will travel to Washington, D.C., to meet with White House staff members, top officials at DHS and CBP, and congressional members to demand more accountability and oversight of Border Patrol agents.

Congress should create an external, independent oversight commission with investigatory, auditing, and subpoena power to respond to complaints from whistleblowers and the general public about CBP abuses, while protecting the identity and status of complainants. The oversight commission, which should include non-governmental organizations among its members, should be required to issue public reports on its activity and have the authority to make legislative, regulatory, or policy recommendations.

The time has come to create a mechanism for holding CBP accountable and to check the rising trend of abuse and deaths.

Texas must stop overusing solitary confinement in prisons and jails

By Kate Vickery
Legislative Intern

In June, for the first time in US history, a congressional subcommittee hearing was held on the use of solitary confinement. Senator Dick Durbin opened the congressional hearing by noting that over 80,000 U.S. inmates are currently held in solitary confinement, the highest number in history.  This wasn’t always the case.

“We now know that solitary confinement is not just used on the worst of the worst. Instead we’re seeing an alarming increase in isolation for those who don’t really need to be there and for many vulnerable populations like immigrants, children, LGBT inmates…supposedly there for their own protection.”

The testimony of people who had experienced solitary was incredibly moving, particularly that of Texas death row exoneree, Anthony Graves, who was housed in isolation for 10 of his 18 years behind bars. Mr. Graves was an innocent man.

Mr. Graves, was one of many. Texas prisons contain about 10 percent of the nation’s isolated prisoners, who spend an average of three years in solitary.

Last month, a group from Texas Impact visited the Hughes Unit, one of the Texas Department of Criminal Justice’s maximum-security prisons.  An excellent editorial in the Austin American Statesman this week describes the experience:

“We spent the day touring the prison facility with Warden Edward Smith and heard about all of the programs available for inmates. But the image of that small room, the huge doors and the men who languish there stayed with me.”

As Senator Durbin noted, incarcerated juveniles are increasingly held in isolation as well.  While hard numbers are nearly impossible to get, we know that youth are held in solitary confinement in both state and local facilities.

Using isolation as a punishment is technically prohibited for youth in Texas Juvenile Justice Department (TJJD) facilities. However, 24-hour isolation is a viable option in order to “control behavior that disrupts programming.” This loophole in policy allows youth to easily be placed in isolation, when it should be used only as the absolute last resort.

Isolation has particularly devastating effects on juveniles because of their incomplete psychological and emotional development.  This fact was the primary argument for the Supreme Court’s recent decision to eliminate life without parole (LWOP) as a sentencing option for juveniles. The Supreme Court continues to affirm that children who commit crimes are fundamentally different from adults. They should be given every rehabilitative opportunity while incarcerated in order to increase their chances of leading a productive life upon release. Every hour spent in isolation decreases that chance.

Current Texas policies are far too weak to prevent the overuse of isolation.  Reforms need to be made to ensure that solitary confinement is used only in the most extreme circumstances.

The ACLU of Texas is committed to protecting the civil rights and civil liberties of all persons in Texas, including the incarcerated. Unfortunately, the overuse of solitary confinement in Texas prisons and jails violates those civil rights, is exorbitantly expensive, jeopardizes public safety, and has devastating effects on an individual’s mental health.

To help reduce the use of this practice in Texas prisons, sign up for the ACLU of Texas Community Action Network.

You Have Every Right To Photograph That Cop

By Dotty Griffith
Public Education Director

A story in today’s Houston Chronicle raises questions about whether Houston police acted to prevent a by-stander from using a cell phone to make a video recording at the scene when Rufino Lara died after being shot by an officer.

“Transparency would be aided if the police department, as reported, had not seized the cell phone of a witness who was trying to record a video at the scene,” said ACLU of Texas Executive Director Terri Burke. “It’s a shame we can’t see the video the witness reportedly tried to make. Houston Police Chief Charles McClelland has asked for the public to withhold judgment about the shooting. The right of Texans to record police activity in a manner that does not interfere with police work is an important protection against abuses of power by the government. The behavior of some members of the local police department might be less suspect if officers showed more respect for the Constitution, and, in this instance, the First Amendment.”

News reports about differences between police accounts and those of eyewitnesses indicate a bystander’s phone was seized by police when he tried to video the scene and that an officer told him not to record anything.

ACLU of Texas Legal Director Rebecca Robertson noted, “Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes police and other government officials carrying out their duties. Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places.”

Victims, police and suspects can all benefit from video documentation, added Burke.

Question: Will the new Standards Protect Inmates from Sexual Abuse in Texas Prisons? Answer: Yes, No, and Maybe

By Kate Vickery

Legislative Intern

On June 20, 2012, the Department of Justice (DOJ) issued its final ruling on national standards to prevent detect, and respond to prison rape, as required by the Prison Rape Elimination Act (PREA), passed in 2003.

If fully implemented, the new regulations will ensure an unprecedented level of protection for prisoners against the epidemic of sexual violence in prison, where one in ten inmates experience at least one incident of sexual victimization. The rate of abuse is significantly higher for women (13%), homosexual males (39%), and homosexual or bisexual females (18%). Unsurprisingly, inmates who are victims of sexual assault are more likely to contract HIV and suffer psychological repercussions.

The new PREA Standards apply to various degrees to state and local prisons/jails, lockups, community confinement facilities, and juvenile facilities.

The standards are over two years behind schedule; the National Prison Rape Elimination Commission presented its draft standards in June of 2009, and the Attorney General was expected to release the final language within a year.  The draft standards covered everything from prison layout and construction to immigration detention centers.  While the final language was hammered out, with significant public and advocate input, state agencies waited on pins and needles. Brandon Wood of the Texas Commission on Jail Standards said the standards were like the “800 pound gorilla” for many years – no one knew how much change the new rules would require for existing prisons and jails.

Texas has already put a few systems in place to help address the chronic sexual abuse in Texas prisons. In 2007, the 80th Legislature created the PREA Ombudsman program, a semi-external agency (the Ombudsman reports to the Board of Directors, rather than to the Director of TDCJ) that monitors the agency’s efforts to eliminate sexual assaults in TDCJ correctional facilities, ensure the agency’s policies and procedures are in compliance with federal and state laws and standards, and respond to public inquiries. The Ombudsman office has a staff of three, who process inmates’ complaints of sexual assault, investigate the allegations, and pass all of them on to the Office of the Inspector General for further investigation.

This system is certainly a step in the right direction, but it is reactive rather than proactive. The new PREA Standards, if fully implemented by TDCJ, should result in fewer instances of sexual abuse in the first place.

The final rules are more watered down than the draft rules, but there are bright spots, particularly for the protections provided to women, youth and LGBTI inmates. As you might expect, the DOJ “has aimed to craft standards that will yield the maximum desired effect while minimizing the financial impact on jurisdictions.”  In other words, there is a lot of “should be” and “do your best” language in the final rules, and the enforcement mechanisms lack bite.

Here are a few highlights:
Continue reading Question: Will the new Standards Protect Inmates from Sexual Abuse in Texas Prisons? Answer: Yes, No, and Maybe

Separation of Church and State: a Debate as Old as American Patriotism

By Jeffrey Adams
Summer Legal Intern

On the anniversary of our nation’s independence, Americans celebrate freedom, but do you know where it comes from? For example, think about the the freedom of religion guaranteed by the First Amendment. Do you know how the phrase “separation of church and State” originated? You won’t find it in the Constitution.

In his 1802 letter to the Danbury Baptist Association of Connecticut, U.S. President Thomas Jefferson used the now-famous “wall of separation” metaphor to describe the ideal relationship between church and State:

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State

Jefferson is revered as one of the earliest American patriots. He drafted the Declaration of Independence that marked our break from English rule. Three years later, he authored The Virginia Act for Establishing Religious Freedom that was a precursor to the First Amendment. Later, while serving as our third U.S. President, Jefferson wrote his famous response to the Danbury Baptists.

But the analogy is older than that. It was coined, as far as anyone can tell, by Roger Williams, the founder of the state of Rhode Island and the first Baptist church in America. Williams, a Puritan who fled from religious persecution, himself, wrote in 1644 of “a hedge or wall of separation between the garden of the church and the wilderness of the world.” Although Jefferson was not present for the Philadelphia Convention where the U.S. Constitution was drafted in 1787, he led advocates for the religious freedoms guaranteed in the First Amendment. He borrowed Williams’ analogy to explain why the Founders thought it was so important. After all, New Hampshire, New York, Virginia, and North Carolina all proposed something similar to the language of the First Amendment before they would agree to ratify the new Constitution.

In 1878, the Supreme Court invoked Jefferson’s Danbury letter in Reynolds v. U.S., a case that challenged the Constitutionality of a federal law criminalizing bigamy. To determine whether the anti-bigamy law infringed on an individual’s rights, the Court had to interpret the meaning of the First Amendment and noted that “religion” was not defined anywhere by the drafters: “We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.” The Court reviewed the political and legal environment at the time the Bill of Rights was drafted, noting that states had routinely collected taxes in support of particular religious sects and punished citizens for failing to attend public worship ceremonies. Against this backdrop of government interference in religion, the Court viewed Jefferson’s letter to the Danbury Baptists as “an authoritative declaration of the scope” of the First Amendment. And, thus, the “separation of church and State” became enshrined in judicial precedent.

Interestingly, the controversy over this separation is as old as the republic, itself. Jefferson, a believer in decentralized government and Republican party leader, was reviled by the Federalists of the time for his persistent refusal to proclaim a day of thanksgiving or prayer. Jefferson’s refusal to do so was based on his belief that government should not interfere in the religious life of its citizens, and to endorse a day of thanksgiving was, he thought, an exploitation of religion. He believed that in breaking away from the rule of England, we also had to break from their tradition of State-controlled religion. His opponents responded by labeling him a godless Republican. If we look at the disagreement surrounding religious conversations today, the scrutiny given to the faith beliefs of presidential candidates and other public figures, we see that not much has changed.

This July 4th, remember the quintessential American freedom to disagree, and celebrate your right to believe freely without repression or coercion from anyone, especially the government.