A dance performance at Harvard Law School on Friday showed that art is one of our most powerful ways to fight for justice. See my new post online about the Zaccho Dance Troupe and their spectacular Dying While Black and Brown at
There’s some good news about a bill that’s been filed by Massachusetts House Representative Kay Khan (D-Newton), now known as HD1073. The good news is that the bill aims to prevent employees of the opposite sex from the use of video cameras in jails or prisons during strip searches. At this point, some activists feel that the bill doesn’t go far enough, but hopefully that can be corrected.
A strip search in this context, refers to any search where a prisoner is required to remove all of his or her clothing. Per the language of the proposed bill which according to Khan’s office, is still under construction, a strip search “may include a visual inspection of a nude inmate’s oral, anal or vaginal cavity.”
The need for such a bill came about as a result of a lawsuit filed by the Law Offices of Howard Friedman in 2011 against Sheriff Michael J. Ashe and Assistant Superintendent Patricia Murphy of the Western Massachusetts Regional Correctional Center in Chicopee. I wrote about this case here1 and here2, explaining how taping of searches began in mid-September 2008. According to the suit, 68 percent of the tapes show “some or all of the women’s genitals, buttocks, or breasts.” Per Friedman’s law office website: “From September 15, 2008 to May 20, 2010, males held the camera for about 70% of the strip searches.” While the jail contended that these videotapes were used for safety reasons and to document a “potentially dangerous move” from general population to the segregation unit, David Milton, an attorney in Friedman’s office, said of the jail, in a telephone interview in 2014,“No one could identify a single place in the country that videotaped strip searches.”
The suit contended that videotaping the searches violated the Fourth Amendment which protects citizens from unreasonable searches and seizures. The case was successful and Judge Michael Ponser’s decision came down on August 26, 2014. The judge ruled for Debra Baggett, the plaintiff in the class-action case, and 178 former and current detainees at the Chicopee jail. The case sent a jolt through anyone who was complacent about such horrors as the public discovered that 274 strip searches had been videotaped, all of women, mostly by men who supposedly didn’t look. An article at Think Progress, reported that Judge Ponser stated in the decision, “The fact that the male officer, while operating the video camera, may be turned to one side or have his back turned will do little, for most female inmates, to diminish the sense of embarrassment, humiliation, and vulnerability that she must inevitably feel.”
A few months after the suit was settled, in November, 2014, Lois Ahrens, director of the Real Cost of Prisons Project, wrote a letter to the editor (LTE) which first appeared on Masslive.com and then in Massachusetts Lawyers Weekly. She pointed out the cost of this process to taxpayers. Through a public records request, Ahrens discovered that the Sheriff’s office had spent close to $500,000 on lawyer’s fees to defend itself, saying they had not violated women’s rights when videotaping the searches.
Governor’s Councillor, Michael Albano, who represents the counties of Hampden, Hampshire, Berkshire and Franklin—where the Chicopee jail resides— became concerned about this. Ahrens said in an interview, that his interest was sparked after reading her LTE. Albano approached Rep. Khan about a bill.
Khan’s bill aims to add new language to Chapter 127 of the Massachusetts General Laws, which governs “Officers and Inmates of Penal and Reformatory Institutions, Parole and Pardons.” At this point, the language to be added is in flux and Khan said in a telephone interview that she hopes people will come to the to-be scheduled hearing to discuss their concerns. Concerns can and have changed bill language, said Khan.
The bill states that “Strip searches of inmates, including the videotaping thereof, shall not be conducted by or in the immediate vicinity of a correction officer or other employee of the opposite sex, except under an emergency or otherwise urgent situation.” This indicates that men cannot be videotaping body cavity searches of women except in emergency situations. “But what defines an emergency?” asked Ahrens. She said this needs to be clearly spelled out.
Ahrens also raised the issue that the bill does not call for outside oversight. If videotaping is mishandled, the superintendent or designees of the prison or jail get the news and are required to file a report. But Ahrens pointed out this could be problematic as they are the ones who have ordered it. “It’s a closed loop,” she added, and that doesn’t assure regulation. “The big question,” said Ahrens, is “Why do they have to videotape strip searches at all?”
Khan was receptive to all of these issues when hearing the criticism, and hopes that the bill can be ironed out in committee after public hearings when testimony on the bill will be heard. She said she too wondered why videotaping was necessary, and would ask the Department of Correction (DOC) that same question. “Oversight is a very good point,” she said, but admitted that even when the Department of Mental Health has gone behind bars to review conditions, it has been difficult to monitor some practices in the Department of Corrections (solitary confinement, for example).
In notes from a February 28 meeting of the Massachusetts Justice Network (MJN), a group that works on policy changes for incarcerated women, there was discussion of the bill. Suggestions were made that any searches of women should be based on new recommendations for the Bangkok Rules, the new UN global standards for justice-involved women. The Bangkok Rules put it this way: “Given the risk of abuse during pat-down searches and even more so during strip or invasive body searches, they must be carried out by female staff. Alternative screening methods should be developed.”
In other words, international standards say that we should end invasive searches. Period. Never mind videotaping them. About strip searches, MJN asked: “Why not use scanners and end demeaning (and trauma-inducing) body cavity searches.” Kay Khan said she was also receptive to this idea.
The protection of women prisoners is important. When shackling was ended in Massachusetts, it took many organizations coming together to raise their voices as to why shackling should not occur when pregnant women were giving birth behind bars. Now, Massachusetts has the opportunity to prohibit the videotaping of searches behind bars. In fact, it has the opportunity to raise questions about alternatives to invasive searches. Those organizations that got behind the inhumanity of shackling women need to speak out and help create a bill that has legs, and ultimately a law that protects the incarcerated from potentially abusive treatment.
I have a new post on Truthout that I hope you’ll check out. It begins:
It was only for a moment, but on January 20, 2015, this country’s criminal punishment system got a general call for reform in President Obama’s state of the union address. With 5 percent of the world’s population and 25 percent of the world’s incarcerated people, it’s about time we heard this from our president. But what we didn’t hear was an analysis of exactly what we can do to shrink this massive system.
While Attorney General Eric Holder and many others have urged an end to needless mandatory minimums – a good step toward decarceration – this is not going far enough. Research from a variety of nonprofits like the Sentencing Project and Human Rights Watch have shown that the majority of long-term prisoners, including many who have committed the most violent acts, are actually the best bet to exit prisons and not return to crime. More here.
Image courtesy of Juvenile Justice Exchange
Last week, on Larry Wilmore’s The Nightly Show, the New York Times columnist, Charles Blow was part of a panel discussing persistent and disturbing stereotypes of black men as irresponsible fathers. When Blow mentioned his own dad’s alcoholism and problems raising his son (Charles), he said about his father: “He is not a broken person, he was broken in the moment.” That phrase resonated for me, and I think that concept is pertinent because it applies to all of us. Who of us hasn’t been broken in the moment at some point in our lives?
It might seem strange to you that “broken in the moment” sent me to a recent juvenile lifer parole hearing I attended in Massachusetts. I have now been to eight of these hearings for juveniles and each one is filled with pain but also has demonstrated first-hand the plight of parents as well as the nature of kids who have killed and lived behind bars for years. I wrote about one parole hearing that was filled with healing here, but that is not the norm.
This hearing brought home to me (far more than any I have attended) how awful sentencing juveniles to life without parole really is. Laws have been modified, however 2500 juveniles nation-wide are still serving such sentences since they were behind bars before changes occurred.
In 2012, the U.S. Supreme Court issued its landmark decision, Miller v. Alabama. Miller said science had proven juveniles were different from adults; they needed a judge’s thorough consideration, case by case, and could not automatically be sentenced to life without a meaningful chance at parole.Then in 2013, Massachusetts’ Supreme Judicial Court (SJC) went further in its interpretation of Miller with the Diatchenko v. District Attorney decision. The SJC struck down all sentences of life without parole eligibility for juveniles. This made sense; no other country allows juveniles to live behind bars until they die. A Massachusetts juvenile first-degree lifer was to serve at least 15 years before parole eligibility— a number deemed to allow a meaningful chance at rehabilitation. But the Massachusetts legislature changed that last year insisting that these juveniles serve somewhere between twenty and thirty years before parole eligibility, and allowing no parole in some exceptional cases. Other states have been slow to react wrote Josh Rovner for the Sentencing Project, and many require “decades-long minimum sentences” and, unlike Massachusetts, “few have applied the changes retroactively.”
However, the parole petitioners in these cases that are now coming before the Massachusetts Parole Board, believed when they were sentenced that they would be in prison forever. Many of these teens were indeed broken in the moment. And they made choices in prison that reflect their youth, their despair, and their surety that prison was where they’d die.
Such was the case with Malik Abdul Asaz. Asaz came before the Parole Board at age forty-seven, having served more than thirty years in prison. His crime was horrendous. He killed a man who tried to help him, Stephen Lanigan, a literal good Samaritan who stopped his car, worried that something was wrong when he saw a kid lying in the middle of the road. But the boy jumped up— sixteen-year-old Malik was then named Norman Hawkesworth—and tried to see what it would be like to scare someone, brandishing a gun, and using it. He shot Lanigan in the back, watched him get in his car and drive away; the teen then heard a crash, wondered what had happened, but scared to find out instead fled with his friends.
This action had roots, like most of these murders do, in a childhood filled with trauma: beaten mercilessly by his stepfather as a boy, and knowing only a mother who abandoned him, Asaz barely attended school and got in trouble at a young age. When he entered prison, he believed he needed protection, and as a sixteen year old, maybe he did. In any case, he made the mistake of joining a gang. His entire world became rebellion. He earned 142 disciplinary reports, and his goal turned to becoming a gang leader.
Why on earth, I thought, sitting at this parole hearing and listening to this gruesome tale would we put a sixteen year old in with men who would school him in gang behavior, teach him that the only way was anger and hate? Why is our system not set up to treat these kids but to deprive them of hope? Certainly that will never bring back Stephen Lanigan. Is it really so absurd if you knew you would never get out of prison to lose all hope? In any case, Asaz did. He spent half of his thirty years in solitary confinement.
In 2010, the light bulb went off for Asaz. By this time he had become a Muslim, and he was beginning to realize violence was wrong and a life of hurting others was not what he wanted. But he had become a gang leader by the time this realization occurred. He had ordered “hits” in the prison–having people hurt under his direction, in other words, being violent and encouraging violence. He made these choices, and he admits that now wholeheartedly, but I wonder, how much does our punishment system encourage these choices?
Renouncing a gang is not easy. Luckily, he was transferred to prison in Montana both for his own protection and because of his behavior. There were no gangs there and Asaz began to change. He immersed himself in his faith and in violence prevention programs. He renounced the gang. He realizes that will need a different kind of protection perhaps for the rest of his life. He did this before he knew that he could ever have the opportunity to get out of prison. But would this light have gone off earlier if he had imagined a future?
Asaz came to Massachusetts from Montana and appeared before the Board asking for a two-year setback, not for release at this time. He wants to be returned to Montana to do more violence prevention programs. He realizes he needs more time to work on the kind of anger that he honed behind bars. The Board can grant him that request or they can give him a three, four, or five year setback.
But the question remains for me: what would Asaz be like today if he had not been put in an adult prison? Certainly Stephen Lanigan’s family suffered enormously because of his actions. But was being locked up with adults the best way for him to deal with that crime? Was it the best for our citizenry, the country, the world?
Professor Jonathan Simon from UC Berkeley who has written extensively on how much punishment is enough, said when I interviewed him for another article, that the standard across the world for such cases is ten to fifteen years behind bars. He said that “One thing that favors ten years is that beyond ten years, there is no deterrent value. It is inevitably degrading after that.” The person sentenced in many cases is assumed ready to be released (presumptive parole) but here in the states, he often must prove he is ready for release before he gets out of prison. In the case of Asaz, if he had been locked in a juvenile facility where people acted as educators and counselors, aiming to deal with the deficits in his youth while learning new ways of thinking and behaving—if he got support as well as supervision—wouldn’t he have been able to change in ten to fifteen years?
I do understand that retribution is an important part of our punishment paradigm in the United States. But how much punishment is enough and to what end? Is Asaz ready to come out of prison now? Probably not, and yet he knows that. Will the Board allow him to come back before them in two years, which in my mind would acknowledge that he wants to change, is trying to change, and aims to repair the harm he has caused? Maybe. But it is conceivable that they will give him five years, without believing that the system itself has caused him to be broken even more than he already was.