Videotaping Strip Searches in Jail is Not Reform

Much has been written about Sheriff Michael J. Ashe of Hampden County as a heralded criminal justice reformer. Most recently the Massachusetts Attorney General candidate, Warren Tolman, claimed support of Ashe with these words, “Sheriff Ashe has been a leader in the Commonwealth on finding ways to rehabilitate, treat mental illness and be proactive in instituting criminal justice reforms.” Even Judge Michael Ponser, the judge who ruled that Sheriff’s Ashe’s deplorable policy of videotaping strip-searches in the women’s prison in Chicopee was “unconstitutional,” also noted that Ashe has a good reputation running the county’s jails in the Conclusion to his Decision.

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Photo via Christopher Meder

But Debra Baggett, the plaintiff in the class-action case for 178 former and current detainees at the Chicopee jail has much to say about the place where 274 strip searches were videotaped. The lawsuit was 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 and it contended that the searches violated the Fourth Amendment which protects citizens from unreasonable searches and seizures.

These tapes, began in mid-September 2008, and according to the suit, 68 percent of them 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.” And the gender of the camera holder is not irrelevant in spite of the fact that men were supposed to have their backs to the prisoners during the videotaping. As the judge pointed out, “If you’re going to videotape something, it’s awfully hard not to view it.”

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. But as David Milton, an attorney for the women, said of the jail, in a telephone interview,  “No one couldn’t identify a single place in the country that videotaped strip searches.”

Baggett, who is now living in Alabama, said that to her, the policies at Chicopee certainly didn’t look so progressive. She explained that “Seg” or the Segregation Unit was “multi-function;” in other words, it was used to isolate women with behavioral issues and supposedly to prevent those with mental health issues from suicide. Baggett said to me, imagine being a woman who had just lost her daughter or someone who had been raped a few hours before her arrest—both cases which occurred during her jail stay in Seg—and imagine how distraught you might be. Then imagine a jail that decides to handle such women with strip searches after they have been transferred from general population to Seg. From Think Progress, These searches required a woman to “run her fingers through her hair, remove dentures if she wore them, raise both arms, lift her breasts, lift her stomach for visual inspection if she had a large mid-section, and remove any tampon or pad if she were menstruating. She was then required to turn around, bend over, spread her buttocks, and cough.”

Then imagine being videotaped during those searches. Videotaped, because the jail contended this was a necessity to stop possible infractions.

In two phone interviews, Baggett was very open about the fact that a “Mental Health person was almost non-existent” in her experience in Seg. She never once saw a psychiatrist while she was there. She said that medication for her mental health issues was taken away when she entered WCC and she had a severe withdrawal from being without it that led to restraints and pepper spray. She said this kind of treatment exacerbated the issues that she suffered from.

Lois Ahrens, Director of The Real Cost of Prisons Project (RCPP), in 2012, in a letter to the Daily Hampshire Gazette, said that “Kate Decou, the former assistant superintendent of the Hampden County jail, wrote in the Journal of Correctional Health in 1998 that ’75 percent of women reported histories of sexual and physical violence, 82 percent were arrested for drug offenses, 15 percent had severe mental illness, 50 percent reported symptoms of post traumatic stress disorder, 33 percent were homeless upon arrest and 85 percent were mothers.’”

Why on earth would someone who aims to be a reformer advocate for videotaping strip searches of these women?

Ahrens, an activist/organizer for more than 40 years lives not far from the jail. She has been fighting against its expansion which will include 134 women, all pre-trial, Ahrens said in a phone interview. She called Ashe “an empire builder” who “has built bigger and bigger jails. He has provided the place for all of these women, 60% of whom are there pre-trial. If he was a reformer he would say we don’t need another jail to lock people up…we need to create community-based programs.”

There is no doubt, however, that Ashe is popular with many. In a Commonwealth Magazine article in 2001, writer Neil Miller praised his reentry programs and Michael Albano, now Governor’s Councilor but then mayor, said “he could get re-elected in his sleep.” But Miller also pointed out the initial controversy when Ashe hired his brother Jay and said “Ashe’s popularity may have as much to do with his regular-guy persona and reputation for integrity as his policies. Indeed, his personal popularity may provide cover for policies that would otherwise prove politically hazardous.” Or is his beloved status just loyalty to an “entrenched sheriff?”

Miller was certainly not talking about the same policies that have recently come under scrutiny. It is not only videotaping of women being strip searched but of another barbaric policy that catapulted Chicopee into the news. Until 2014, at WCC, women were shackled while giving birth, a policy that has been criticized vociferously by human rights organizations and the ACLU. As I wrote in Boston Magazine, women like Kenzie, who requested to be identified only by her first name, arrived at a hospital only 11 minutes before her child was born. “No one believed I was in labor because I wasn’t hysterical and screaming,” she said in an interview. The fact that no one took her seriously is another indictment against the jail.

Massachusetts finally made it a law not to shackle women during birth but it took years and many traumatic experiences behind bars for Governor Deval Patrick to say, “It blows my mind that I have to sign a law for that.” And again, why did  this take so long to change? Where was Sheriff Ashe in this controversy and why didn’t he try to enact reforms earlier?

Debra Baggett will hear in early September about the monetary settlement for her suit. When I asked her what she imagined would happen, she answered, “Jean, how much do you think my dignity is worth?”

It is troubling that policies about women’s dignity are the ones that stand out so clearly. It is troubling that so many women, like Debra Baggett, were not listened to when they said that they were traumatized. It is troubling that it takes laws and lawsuits to get change that should come with respect for human dignity, especially when the word “reform” is tossed around so easily, and some might say, so carelessly.

A Moment of Restorative Justice at a Parole Hearing

It never happens. That’s what the Chairman of the Massachusetts Parole Board said on Tuesday, August 26, at the parole hearing for lifer Keyma Mack when families of both the victim and the murderer reached out to each other with sobs of remorse and vows of forgiveness. Mothers, fathers, cousins, siblings — all were refusing to be bound by shame and hatred. For those of us who witnessed this, it was a moment of grace and an example of why restorative justice was created.

Action-of-the-International-Tribunal-for-the-Application-of-Restorative-JusticeImage courtesy of National Justice News

Keyma Mack, who shot Christopher Pires in 1992, was the fourth juvenile in Massachusetts to be eligible for parole and to have his hearing before the seven-member Board. In 2012, the U.S. Supreme Court issued its landmark decision, Miller v. Alabama that enabled this historical moment. 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. Then in 2013, the Massachusetts Supreme Judicial Court in Diatchenko v. District Attorney ruled life without parole unconstitutional for “all” juveniles in Massachusetts.

At the hearing for Keyma Mack, many elements were not surprising. Mack, who committed his crime at age seventeen is now almost forty; he talked about his transformation behind bars, program participation, prison job, and how Islam had helped him focus on changing his attitudes. He said he had been a boy when he killed Chris but he hung his head as he admitted he had shot him in the back six times. “I shot him until he stopped moving,” Mack said. He owned up to running away after shooting Pires in their home town of Dorchester. He got involved with more guns and drug dealing in Springfield while on the run. At the time, he couldn’t bear facing his crime and all those he had hurt, but now, he seemed to know exactly how awful that crime was. He apologized to the Pires family for taking away their son, brother, cousin, and grandson. He remembered the grandfather’s house and in fact, had somewhat known Chris.

In some ways, it was the all too familiar story of guns, drugs, and the need to be cool in a community that prized toughness. A tragic story that we need to upend.

But if anyone had witnessed what happened before the hearing began, they would have seen the extraordinary. The twenty-five or so family members and friends of Keyma Mack all stood and joined hands and prayed. It was touching to see them, each and every person standing together for their loved one.

The Mack family as well as Keyma himself all expressed their deep remorse for the Pires family at the hearing. No, that is not accurate enough. They each turned from facing the row of Parole Board members who sat behind a table to that supposed other side of the aisle. They said how much they ached for the Pires family. The mother of Christopher at one point had to leave the room, her wailing was so fresh as if the wound was yesterday’s. There is no end to this grief.

But in spite of the magnitude of such a loss, something amazing occurred in this bland room where two aisles of hardback chairs are separated by a thin strand of rope. When  the Pires family, one by one, including the mother who barely spoke English, each took their turn to supposedly oppose Mack’s release, they did not. They told Keyma Mack, who was sitting leg-chained behind them, while they would never forget, that they forgave him. Sob after sob, sorrow after sorrow, they forgave the man who was once a boy who killed their boy. They did not oppose him but what he had done. They wanted him to make meaning out of his life. And Keyma said later, that no matter what happened with his parole, he would do so.

It was a remarkable moment. And it led to the mothers talking together after the hearing. It led to an unscripted, raw, but very real moment of what many would call “restorative justice.” Instead of revenge, the Pires family wanted restoration. Spontaneously, not with any preparation did this moment occur. But it was a coming together where families began to understand each other’s pain and to empathize. “Is that possible?” Mack’s father had cried out when he heard one of the Pires family verbally forgiving their son. This was an epiphany.

The formal practice of restorative justice “emphasizes repairing the harm caused by crime,” and teaches how to do that. It is not easy. It takes time and much anger and hurt. The Mack and Pires families may choose this road now that they have this experience. But in a place where so often the District Attorney claims that the criminal he convicted is still the vicious monster who took a life many many years ago, there was true forgiveness, more compassion, and a real end to some of the pain and suffering. The Pires family said that they felt something had been relieved for them by both seeing and by forgiving their son’s murderer.

Our justice system could learn much from these two families.

Massachusetts Catch 22: Civil Commitments

There never seems to be an end to injustice. Take the past month’s disgrace, five unarmed young black men killed by police: Ferguson’s Mike Brown; Staten Island’s Eric Garner; John Crawford from Beavercreek, Ohio; L.A.’s Ezell Ford; and in Victorville, California, Dante Parker. The pain is palpable. Just tune in to Twitter to see outraged people from across the country rightfully demanding answers and saying that peace will come only when there is justice. As Frederick Douglass said, “Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”

But now comes another variety of injustice that most of you might not have seen coming. And this one’s about women. It is also unsettling because it deals with an additional class of the unarmed: substance addicted persons who are suffering.

heroin                                             Photo from Inmagine.com

First some facts: Did you know that in Massachusetts, if a woman (or man, but for our purposes, think woman) on drugs or alcohol is deemed capable by the courts of risk to themselves or others, the court can involuntarily commit them to an inpatient substance abuse treatment program? This can happen per a little-known section of the Massachusetts General Laws, Chapter 123, Section 35, which authorizes civil commitment for up to 90 days.

Here’s the catch 22: if no in patient-treatment facility exists, these women can be sent to Framingham MCI. Massachusetts is the only state in the nation that imprisons people for drug or alcohol addiction. Note I have not mentioned the word “crime.”

And once sent to Framingham—are you ready?—these women detox in cells without any medication as the Department of Correction is not licensed to dispense medications such as Methadone, Suboxone or Vivitrol, those often used for heroin withdrawal; they start out in the medical unit but then, these women cannot be mixed with rest of population, said Jessie Rossman, staff attorney for the American Civil Liberties Union (ACLU) in Massachusetts, in a phone interview. After detoxing, Rossman said that they are “housed in the ‘Mod,’ a unit with bunk beds. They are forced to stay inside for 20 hours a day, they must have medications and meals brought to them, and they have virtually no access to outdoors with only 2 ½ hours six days a week of outside time and some recreation time.” They do not have access to the library. They cannot pray in the chapel. They cannot participate in programs. They are, in  a very real sense treated more harshly than those convicted of crimes.

And if it wasn’t crazy enough, knowing that people can be committed by a relative, guardian, police officer, physician court official, or even by themselves, it would almost make sense if they could get treatment for addiction. But the most ironic part of all of this: for women who are sent to MCI Framingham to detox, there are absolutely no treatment programs made available to them. None of the anonymous programs like Narcotics Anonymous or Alcoholics Anonymous. And why you ask? Aha, the icing on the Catch 22 cake! Drug treatment at Framingham is only available to prisoners who have been convicted of crimes and sentenced to prison.

For the past three years 2011-2013, 540 women have been in this exact situation, sent to Framingham where some served up to 90 days, and the majority averaged two weeks each. Sociologist Susan Sered, writing about this on her blog,said, “While the law requires that the court call for a psychological assessment, it is unclear what that assessment means. In any case, there is no trial, no due process, and no possibility for appeal.”

Justice? Not so much said a suit filed this past June by the ACLU, Prisoners’ Legal Services, The Center for Public Representation, and attorneys from the law firm, WilmerHale. The suit logically aims to have women get care and treatment for alcoholism or substance abuse in a Department of Public Health licensed facility in the community, as required by Section 35. It wants them out of Framingham as soon as possible. Recently the Boston Globe suggested that “the state could find another solution through private contracts that would preserve women’s rights and treat addiction as the medical condition that it is.”

Robert Fleischner, assistant director of the Center for Public Representation, put this into powerful words: “Imagine trying to get help for a child in a desperate struggle with addiction, and that the treatment facility you thought you were sending them to turns out to be a prison instead. It’s a parent’s nightmare.”

In a civilized society, black unarmed boys would not be shot by police officers without clear visuals of weapons and danger to one’s life, and even then, not six times in the head. In a civilized society, as Jim Pingeon of Prisoners’ Legal Services said, “No one should be sent to prison for a disease.”

Now For Some Good News: The Justice Theatre Company

A newly formed theatre group has their focus on justice and an upcoming show about prison should be on your agenda. The Justice Theatre Company, founded this year, aims to tackle serious issues such as “poverty, human trafficking, racism, or genocide,” through the stage. They are a group of theatre aficionados between the ages of 14 and 24 who aim to expose social injustice as a way to raise awareness their website says they always will “advocate for the dignity of all, as well as raise proceeds for an organization that helps to end these injustices.”

Behind Bars Official Flyer

Their first production will be an adaptation of Shakespeare Behind Bars: The Power of Drama in a Women’s Prison—wait for it—my book (SBB)! On Friday, August 15, they debut, and performances continue on Saturday, August 16 (see above). Their Facebook page here https://www.facebook.com/justicetheatre has lots of photos of the company and shows are being held at Fontbonne Academy 930 Brook Road, Milton, MA 02186.

It is the first time SBB has been put on stage and I am very excited that these energetic young adults are so enthusiastic. I attended a rehearsal and they couldn’t be more professional and committed to their work. So it will be wonderful to see the finished product. They are donating all proceeds (admission is $7 or a “gently-used book”) to the Quincy Prison Book Project. Couldn’t be better in my opinion. We will be on hand for audience discussion after the show on Friday night (me) and on Saturday afternoon (a panel including the Quincy folks, a yet unnamed judge and myself). My books will be on sale at a reduced price for audience members and signed of course.

Adapted from my book, they call their play, “the thrilling tale that follows a teacher, her eight students, and their journey through life, literature, and lock-up…Jean, an idealistic teacher with a desire to change her world, comes to teach in Framingham Women’s Prison in the Fall of 1988. There, she meets Dolly, a determined prisoner serving a life sentence for her boyfriend’s murder; Bertie, a Jamaican woman who is outcast because of her horrendous crime; Rhonda, the daughter of a Marine who falls into crime in the wake of her father’s death; Kit, a former drug user who can hardly keep clean, even behind bars; Rose, an HIV+ drug addict and former prostitute who is rejected by almost every inmate because of her status during the AIDS epidemic; Cody, a troubled heroin addict and dealer, who is more concerned with love than literature; and Mamie, an arsonist who fights to finish a college class before she succumbs to the brain tumor that plagues her.

The unlikeliest of plays in the loneliest of places: how will these eight women ever come together to produce Shakespeare?”

So, meanwhile what could be more fun for me than this? I hope to see you at a show! And hats off to the newly formed Justice Theatre CompanyJusticeTheatreCompany. You probably won’t have any trouble knowing which one of the above is me.

New Juvenile Lifer Bill: Did Massachusetts Really Do the Right Thing?

Philip Chism’s alleged murder of Colleen Ritzer may have added fuel to the fire, but legislative sausage-making is about to bring us a new juvenile sentencing law.

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                                Photo via barfblog.com

Massachusetts Juvenile Judge Jay D. Blitzman got it right when he wrote in Gault’s Promise “As the public and media react to the crime du jour, there is an unfortunate tendency to legislate by anecdote.”  Bad cases can lead to bad laws.

Less than a year after the tragic death of Colleen Ritzer by the alleged fourteen-year-old killer, Philip Chism, this week or next, the Governor is expected to sign into law: “An Act relative to juvenile life sentences for first-degree murder.” Some are wondering if this will prove another rash reaction to the grief and anger over horrendous crimes (see Cinelli) —not the science and reason needed to make good legislation.

The Bill, a concoction from the House and Senate, is an attempt by the Legislature to respond to two recent high court rulings. 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 new law, if signed as is, will be harsher than Diatchenko (and harsher in some ways than the one Governor Patrick first filed in 2013 where he set a minimum of fifteen years for juvenile first-degree lifers). It provides for initial parole eligibility at 20-30 years in felony murder cases — i.e. you were there but didn’t pull the trigger. It requires 25-30 years in cases of premeditation — i.e. first-degree murder; and it sets a mandatory 30 years for extreme cruelty and atrocity (EAC).

Rep. John Keenan (Salem) who filed a bill in 2013, prior to the Chism case, but hails from the district next to Danvers where Colleen Ritzer was murdered, wanted 35 years before parole eligibility. Keenan said his bill was in response to Miller, and feels the new law will be a “solid compromise — it pays respect to victims and to the nature of juvenile minds.”

However, according to a brief written by attorneys Patty Garin and Dave Nathanson in 2011, EAC “encompasses almost all violent murders.” 30 years, they say, is in essence, a de facto life without parole sentence. And they and other activists say the bill of Patrick’s desk ignores the mind of a child as discussed in the recent court cases and a meaningful chance for rehabilitation.

If fourteen-year old Chism is convicted of 30 years, he would be sentenced to almost twice the number of years he has lived before getting a chance to see the Parole Board — with no guarantee of release.

Naoka Carey, Executive Director of the advocacy group, Citizens for Juvenile Justice, said in an interview that the Legislature, “in a sense, felt that they had to do something after Diatchenko.” Families of victims experienced Diatchenko decision as “somehow too light for their grief—they felt the ground shifted underneath them,” she said. “This happens when constitutional decisions get interpreted. Most of the time, we recognize that kids are different but when they do terrible things, we forget.”

Sen. James Eldridge (Acton), one of four in the Senate and eighteen in the House who voted against the bill, agrees. He said in an interview, “A horrific murder pressures, pushes people to be tough on crime.” He pointed out that the amendment passed by the Senate with a right to counsel was ultimately not in the final version of the bill.” While gladdened with some options for juvenile lifers — eligibility for education and treatment, and no maximum ten-year wait if a juvenile lifer is refused parole— said sentences are too harsh and that “there was little discussion about the distinct nature of juvenile development.”

This past May, many families of murder victims who wanted no juvenile first-degree lifer to ever get parole, descended on the State House with 15,000 signatures decrying the ruling in Diatchenko. Chism’s case only added fuel to their fire.

There is already talk of litigation to determine what Diatchenko requires and to sort out the mishmash; if the Governor does sign it, this new law is likely to end up in the courts.