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AlabamaAlabama plans to use Covid relief funds to finance prison-building spreeDecarceration advocates urge lawmakers to consider sentencing reform instead as prisons have seen high rates of Covid outbreaks M More
At least 70% of people charged in the Capitol riot have been released as they wait for trial, according to a Guardian analysis.That high pretrial release rate stands in stark contrast with the usual detention rates in the federal system, where only 25% of defendants nationwide are typically released before their trial.Eric Munchel, known as “Zip Tie Guy”, who was allegedly photographed wearing tactical gear and carrying wrist restraints in the Senate chamber, was released in late March, along with his mother, after an appeals court questioned whether he posed any danger outside the specific context of 6 January.Richard Barnett, the Arkansas man photographed with his foot on Nancy Pelosi’s desk, was released in late April, nearly two months after screaming during a court hearing that “it’s not fair” that he was still in custody when “everybody else who did things much worse are already home”.Multiple alleged members of the Proud Boys and the Oath Keepers, two groups facing the most serious conspiracy charges related to their alleged plans for violence, have been released before trial, though some prominent leaders in these groups remain in custody.The disparity in pretrial detention rates highlights what legal experts said was a broader development in the 6 January cases: the likelihood that a substantial swathe of the alleged rioters may not serve any prison time at all, even if they are convicted or plead guilty.Many Capitol defendants are being released ahead of trial because they are facing relatively low-level charges, experts said, though other factors, including racial bias, may also play a role.“I’m both surprised and not surprised. Most of these people are white,” said Erica Zunkel, associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School. “The majority of people in the federal system are people of color.”The US attorney’s office for the District of Columbia, which is prosecuting the cases, said in a statement that the alleged Capitol rioters were facing very different kinds of charges than most people in the federal system.“Comparing the per cent of January 6 defendants detained with the overall federal average is comparing apples and oranges,” a spokesperson for the office said. “The majority of federal defendants are charged with immigration or drug crimes, both of which are typically accompanied by detention. The January 6 defendants are charged with a variety of obstruction, assault, and trespassing charges. The comparison makes no sense.”Zunkel, a former federal defense attorney, argued that it was absolutely fair to ask why prosecutors and judges were making different detention decisions for drug and immigration cases than for the people charged with participating in the 6 January attack, who are more than 90% white.More than 96% of the people charged with federal immigration crimes are Hispanic, and more than 70% of those charged with federal drug crimes are Hispanic and Black, Zunkel said, citing federal sentencing data.“We have a problem with our system, something has gone wildly wrong, if we have a 75% detention rate nationwide, and we have a subset where we have a more than 70% release rate,” she said.Zunkel and a colleague, Judith P Miller, both former federal defense attorneys, said that the level of skepticism and care federal judges were bringing to the decision of whether Capitol defendants were truly dangerous enough to keep incarcerated was not at all the norm.The problem, they said, was not that judges were making the wrong call in releasing Capitol defendants, but that judges were not making similar calls for the majority of people in the federal system.“For my Black and brown clients, it feels like they have to meet such an impossibly high threshold to be released,” Miller, a University of Chicago law professor, said. “The kind of sensitivity the courts have shown to the capitol defendants’ claims for relief – I wish some of that sensitivity would be shown more broadly.”The US attorney’s office for the District of Columbia declined to confirm how many Capitol defendants were currently in pretrial detention, noting that the number “has the potential to fluctuate frequently based on ongoing detention decisions”.By mid-May, at least 440 people had been arrested on charges related to the 6 January Capitol breach, according to the justice department, including at least 125 charged with assaulting or impeding law enforcement.Of 398 defendants listed on the justice department’s Capitol breach case site as of 10 May, at least 330 were listed on the site, or in federal court records, as released from custody. At least 56 of those defendants remained in detention.The precise number and percentage of Capitol defendants who are released versus in detention changes often, as new alleged rioters are arrested, others secure release, and a few risk re-arrest for violating the conditions of their release. The number and status of cases on the justice department’s Capitol breach website also lags behind court filings.But the broader trend in the cases is clear: the overwhelming majority of Capitol defendants are not being detained ahead of trial.Based on their likelihood of flight risk or danger to their communities, some of the Capitol defendants have been required to meet more intensive release conditions, including GPS monitoring, curfews or home detention, and limitations on their access to the Internet or social media, according to court records.Many of the Capitol defendants are facing only relatively low-level federal charges, such as entering a restricted building or disorderly conduct within a restricted building. A Washington Post analysis of court documents in mid-May concluded that 44% of the Capitol defendants faced only misdemeanor charges.Some of the federal judges hearing the Capitol cases have expressed concern that certain defendants may have already spent more time in custody than they are likely to face as a punishment for their crimes.“For those who end up only charged with misdemeanors, it’s likely that they won’t serve any substantial time, or potentially no time at all,” said Mary McCord, an expert on extremism who served for nearly 20 years as a prosecutor in the US attorney’s office in Washington DC. “It’s quite possible if they were to plead guilty, they would be sentenced to whatever time was served, or 30 days.”There is a tension between the dramatic collective effect of the 6 January mob, which halted the official certification of Biden’s election as president and threatened the legitimacy of American democracy, legal experts said, and what federal prosecutors can prove that individual people did.“The irony is that we have so many laws – so many things are illegal – it’s somewhat surprising that they’re not able to find charges that are more serious,” Zunkel said.Some more serious potential charges, like conspiracy or seditious conspiracy, would require evidence of prior agreement to commit a crime that appears to be lacking for many participants in the chaotic Capitol mob, said Daniel Richman, a Columbia University law professor and former federal prosecutor.“When you look at each individual, what they did might amount to destruction of property or illegal entry, and that’s in all likelihood what they’ll be charged with, but the larger dimension of their participation in a massive attack falls by the wayside,” Richman said.Part of the current dynamic of the Capitol cases, Richman cautioned, was seeing the very normal limitations of the criminal justice system come up against the heightened expectations of a public who watched the shocking violence of 6 January unfold in real time.“Criminal prosecutions never end in these glorious accountability moments where everyone is satisfied that right was done,” Richman said.For many Capitol defendants facing these lower-level charges, justice department prosecutors did not even attempt to keep them detained ahead of trial, and they were quickly released on standard conditions.Federal prosecutors did fight for months to keep other defendants in custody, with federal judges eventually overruling them, particularly after the pivotal appeals court ruling questioning the detention of Munchel, the alleged “Zip Tie Guy”, and his mother, who both gave interviews talking about their willingness to engage in violence to further their beliefs but were not accused of any specific acts of violence or vandalism as they roamed the Capitol, wrist restraints in hand.“My guess is the judges who decided to release some of these folks on bond were thinking: on January 6, there were an ideal storm of conditions for these people to commit a crime, and now there aren’t those ideal conditions any more, so they’re not likely to do it again,” said Wanda Bertram, a communications strategist at the Prison Policy Initiative, a non-profit that focuses on the harms of mass incarceration.But the same logic could be applied to low-level crimes: “investing in people’s communities” to “create different conditions” that would make it unlikely for them to repeat the same behavior, Bertram said.“The treatment of the people who are involved in the Capitol riot should show us what is possible and what is logical in terms of how to treat people in the future.”Former prosecutors defended the justice department’s work in the Capitol cases, and said that the continuing effort to identify and arrest a large proportion of the hundreds of people who stormed the Capitol was a massive, demanding endeavor, and showed how much the government wanted to ensure that there were real consequences for participating in the attack.“They’ve been aggressive, and continue to be, in trying to find everybody who was at that riot,” said Laurie Levenson, a professor at Loyola Law School. “For the attorney general, numbers matter. It really matters that hundreds of people are held responsible. That’s the message to people: you don’t want to game the system.”“I think they pretty much want on everyone’s records that they were responsible for these actions,” Levenson added. “It means something that these people are going to walk away with even a federal misdemeanor record. That has an impact on their employment, on their life, on their situation in their community. Even if they just get probation, they’re going to have to watch their step.” More
The state of Arizona is preparing to kill death row inmates using hydrogen cyanide, the same lethal gas that was deployed at Auschwitz.Documents obtained by the Guardian reveal that Arizona’s department of corrections has spent more than $2,000 in procuring the ingredients to make cyanide gas. The department bought a solid brick of potassium cyanide in December for $1,530.It also purchased sodium hydroxide pellets and sulfuric acid which are intended to be used to generate the deadly gas. The gas chamber itself, built in 1949 and disused for 22 years, has been dusted off and, according to the department, “refurbished”.Over the past few months the Republican-controlled state has moved aggressively to restart its deeply flawed execution system. The death penalty has been in abeyance in Arizona for seven years following the gruesomely botched lethal injection of Joseph Wood in 2014.Last month, the Guardian revealed that Arizona spent a jaw-dropping $1.5m on a batch of pentobarbital in October, a sedative which it now hopes to use as its main lethal injection method.The Guardian’s documents, obtained through public records requests, show that officials have also gone to considerable lengths to revive the state’s mothballed gas chamber, housed at ASPC-Florence. A series of tests were conducted last August to appraise its “operability”.Seals on windows and the door were checked to ensure airtightness, and drains cleared of blockage. Water was used in the tests in place of the deadly chemicals, with a smoke grenade ignited to simulate the gas.Some of the techniques used to test the safety of the chamber were astonishingly primitive, the documents reveal. Prison officials checked for gas seepages with a candle.The flame of the candle was held up to the sealed windows and door and if its flame remained steady and did not flicker the chamber was deemed to be airtight. In December staff declared the vessel “operationally ready”.The preparation of cyanide gas executions presents Arizona death row inmates with a Hobson’s choice between two questionable ways to die. Should they opt for the gas chamber, they should be mindful of the last time anybody was gassed by the state.Walter LaGrand, a German national, was sentenced to death for a 1982 bungled armed bank robbery in which a man was killed. The Tucson Citizen published an eyewitness account of his 1999 execution in which he displayed “agonizing choking and gagging” and took 18 minutes to die.“The witness room fell silent as a mist of gas rose, much like steam in a shower, and Walter LaGrand became enveloped in a cloud of cyanide vapor,” the Citizen reported. “He began coughing violently – three or four loud hacks – and made a gagging sound before falling forward.”The newspaper recorded that over many minutes the inmate’s head and arms twitched, and his hands were “red and clenched”.Should an inmate choose death by lethal injection – the method widely deployed among death penalty states as the supposedly scientific and humane alternative to gas, electric chair or firing squad – they will also find the last time it was used in Arizona it was anything but humane.Joseph Wood took almost two hours to die when Arizona experimented on him with 15 doses of a then little-used concoction of lethal injection drugs. An eye witness told the Guardian that he counted Wood gasp and gulp 660 times.In its current rush to restart executions, Arizona has selected two inmates as likely candidates to go first out of a current death row population of 115 people. They are Frank Atwood, 65, sentenced to death for killing an eight-year-old girl, Vicki Lynne Hoskinson, in 1984; and Clarence Dixon, 65, convicted of the 1978 murder of a college student, Deana Bowdoin.A member of Atwood’s legal team, Joseph Perkovich of Phillips Black, told the Guardian that it was improper for the state to be hurrying towards setting an execution date when the pandemic had impeded investigation into his client’s possible innocence for more than a year. As for Atwood’s choice between lethal injection or gas, Perkovich said: “Neither option is tenable.”The attorney pointed out that there is a discrepancy between the potassium cyanide that has been obtained by the corrections department and the state’s execution protocol which stipulates that sodium cyanide must be used. “This is not a small detail – the specific compound is vitally important,” he said.Perkovich added that “Frank Atwood is prepared to die. He is a man of Greek Orthodox faith and is preparing for this moment. But he does not want to be tortured and subjected to a botched execution.”Inmates who choose the gas chamber are strapped into a chair in the centre of the vessel. Coloured levers are then used to drop the sodium cyanide into a pot of sulfuric acid under the chair, releasing the deadly hydrogen cyanide into the air.Once the prisoner is dead, the gas is neutralized with ammonia until the chamber is safe to enter. “As a precautionary method,” the death chamber protocol says, “it is recommended that the team removing the body wear gas masks and rubber gloves and that the hair of the deceased inmate be ruffled in order to allow any residually trapped gas to escape.”The documents record how prison staff engaged in role play during last year’s tests. Guards acted out as inmates who resisted going to their death, screaming: “This is murder”, “I’m innocent”, “You’re putting me down like an animal”, and “This is against everything America stands for”.Despite Arizona’s best efforts to present its gas chamber as a reputable institution, the horrors of the past hang heavily over it. The Nazis used hydrogen cyanide under the trade name Zyklon B to kill more than 1 million people in gas chambers in Auschwitz and other extermination camps.Robert Dunham, executive director of the Death Penalty Information Center, said: “You have to wonder what Arizona was thinking in believing that in 2021 it is acceptable to execute people in a gas chamber with cyanide gas. Did they have anybody study the history of the Holocaust?” More
Sign up for the Guardian Today US newsletterCalifornia lawmakers are fighting to protect thousands of residents from deportation with new legislation that would stop state prisons and jails from handing over immigrants to US Immigration and Customs Enforcement (Ice).California’s controversial practice of coordinating with Ice agents has received widespread scrutiny in past months, including after the Guardian revealed that the state had transferred two immigrant prisoners to Ice for deportation after they had served as incarcerated firefighters on the frontlines – and after they had completed their sentences.Kao Saelee, 41, was scheduled to leave prison after 22 years behind bars in August. But on the day of his release, when his sister was waiting to take him home, California instead handed him over to immigration authorities. He remains in Ice custody in Louisiana. Bounchan Keola, 39, was reported to Ice by California prison officials in October.Both men had served the state as firefighters while in prison and both were threatened with deportation to Laos, a country their families had fled as refugees when they were young children. The two had been locked up since they were teenagers.Assembly member Wendy Carrillo, of Los Angeles, and other lawmakers on Wednesday unveiled legislation that would ensure that immigrant community members eligible for release from state jails or prisons would not be sent to Ice, but instead would be able to re-enter society and reunite with their families.Supporters of Assembly Bill 937, the Voiding Inequality and Seeking Inclusion for Our Immigrant Neighbors (Vision) Act, say that the practice of transferring people from prison to Ice was a cruel form of “double punishment” that indefinitely separated people from their loved ones after they have served their time. “If it wasn’t for where they were born, these Californians would be able to return home,” Carrillo said.California has no legal obligation to report prisoners to Ice, and despite intense backlash last year, Gavin Newsom, the state’s Democratic governor, has defended the policy and allowed the voluntary transfers to continue. The transfers can affect undocumented people and legal permanent residents, who lose their green cards once they are in Ice custody, due to their criminal records.California has a “sanctuary law”, which means local law enforcement is not supposed to collaborate with US immigration and has a mandate to shield immigrants from deportation threats, but the state has made an exception for local jails and prisons.The transfers are one of the key drivers of deportation in the state. The California department of corrections and rehabilitation (CDCR) transferred an estimated 1,400 people from its custody to Ice last year, according to the Asian Law Caucus, a legal advocacy group supporting the bill. In 2018 and 2019, local jails sent more than 3,700 people to Ice.The practice has been especially concerning during the pandemic when Ice jails and CDCR prisons have both suffered massive and deadly Covid-19 outbreaks in their overcrowded facilities.Keola, who suffered a near-death injury fighting wildfires last year, was freed from Ice custody in January and reunited with his family in the Bay Area for the first time in decades. But the threat of deportation still looms.“I want to get on my feet and work and advocate and help people like myself,” Keola told the Guardian after his release, saying he was hoping to start working as a firefighter. “We should all have that opportunity to have that American life. Hopefully Newsom will stop turning over people like myself.”Last week, Bounchan Keola walked free after 22 years behind bars. He was an incarcerated firefighter who California sent to US immigration at the end of his sentence last year.I chatted with Boun + his sister Thong about reuniting after decades apart. LISTEN: (thread) pic.twitter.com/8E9oJY0x0L— Sam Levin (@SamTLevin) February 7, 2021
On Wednesday, Keola spoke at a news conference supporting the bill, urging the governor to also issue pardons to him and Saelee, the other jailed firefighter sent to Ice, so that they would no longer be threatened with deportation due to their criminal records. “At any moment, I could be arrested and be deported to Laos, a country I have no ties to.”Spokespeople for Ice and CDCR declined to comment. More
The US president, Joe Biden, has signed four executive orders aimed at healing the racial divide in America, including one to curb the US government’s use of private prisons and another to bolster anti-discrimination enforcement in housing. They are among several steps Biden is taking to roll back policies of his predecessor, Donald Trump, and to promote racial justice reforms that he pledged to address during his campaign
Biden signs more executive orders in effort to advance US racial equity
US politics – live More
Donald Trump has added a morbid new distinction to his presidency – for the first time in US history, the federal government has in one year executed more American civilians than all the states combined.In the course of 2020, in an unprecedented glut of judicial killing, the Trump administration rushed to put 10 prisoners to death. The execution spree ran roughshod over historical norms and stood entirely contrary to the decline in the practice of the death penalty that has been the trend in the US for several years.The outlier nature of the Trump administration’s thirst for blood is set out in the year-end report of the Death Penalty Information Center (DPIC). In recent years, the annual review has highlighted the steady withering away of executions, all of which were carried out by individual states.That pattern continued at state level in 2020, heightened by the coronavirus pandemic which suppressed an already low number of scheduled executions. Only five states – Alabama, Georgia, Missouri, Tennessee and Texas – carried out judicial killings. And only Texas performed more than one, producing the lowest number of executions by the states since 1983.States carried out seven executions to the federal government’s 10. Despite the rash of federal killings, that still amounted to the fewest executions in the US since 1991.Against that downward path, the actions of the Trump administration stand out as a grotesque aberration.“The administration’s policies were not just out of step with the historical practices of previous presidents, they were also completely out of step with today’s state practices,” said Robert Dunham, DPIC executive director and lead author of its year-end report.Part of the story was Trump’s willful refusal to take the coronavirus seriously. Unlike death penalty states, the federal government insisted on proceeding with executions. As a result, there was an eruption of Covid-19 cases at the Federal Correctional Complex in Terre Haute, Indiana which the DPIC report notes infected at least nine members of execution teams.But the overwhelming story of the federal executions in 2020 was the disdain shown by the Trump administration towards established norms, and its determination to push the death penalty to the limits of decency even by standards set by those who support the practice.Since Trump lost the election on 3 November, the federal government has put to death three prisoners: Orlando Hall, Brandon Bernard and Alfred Bourgeois. The last time a lame-duck president presided over an execution was in 1889, when the Grover Cleveland administration killed a Choctaw Indian named Richard Smith.All three Trump lame-duck executions involved black men. As the DPIC review points out, racial disparities remain prominent in the roll call of the dead, as they have for decades, with almost half of those executed being people of color.The review exposes other systemic problems in the Trump administration’s choice of prisoners to kill. Lezmond Hill, executed in August, was the only Native American prisoner on federal death row. His execution ignored tribal sovereignty over the case and the objections of the Navajo Nation which is opposed to the death penalty.The subjects of the federal rush to the death chamber included two prisoners whose offenses were committed when they were teenagers. Christopher Vialva was 19 and Bernard 18: they were the first teenage offenders sent to their deaths by the US government in almost 70 years.The sharp contrast between the Trump administration’s aggressive stance and the dramatic reduction in executions at state level is underlined by the annual review of the Texas Coalition to Abolish the Death Penalty (TCADP), also released on Wednesday.Texas, traditionally the death penalty capital of America, carried out three executions this year, down from nine in 2019. The most recent was on 8 July. Billy Joe Wardlow was 18 in 1993 when he committed robbery and murder.“The fact that state legislators, juvenile justice advocates, neuroscience experts and two jurors from Wardlow’s trial had called for a reprieve based on what we know now about adolescent brain development make the circumstances of his arbitrary execution even more appalling,” said Kristin Houlé Cuellar, TCADP executive director.There was some good news. In March, Colorado became the 22nd state to abolish the death penalty. Louisiana and Utah have not executed anybody in 10 years.Joe Biden, the president-elect, has vowed to eliminate the death penalty. But until he enters the White House on 20 January Trump remains in charge. Three more federal inmates are set to die – including the only woman on federal death row – before he is done. More
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It was August, and Katalina stood sobbing in the middle of the cell at the La Palma immigration detention center. She tried not to touch anything – she had seen guards escort out a man who was coughing and trembling just minutes before.
It felt like punishment. Shortly before, she had reported being sexually harassed by another detainee in a male unit of the La Palma correctional center in Arizona where they were being held. Now, she was standing in an isolation cell.
Katalina was worried about contracting Covid-19. The cell she had been placed in hadn’t been cleaned. After standing in the room for five hours, she withdrew her complaint. She had heard that other detainees had spent weeks in segregation after speaking up. It was a risk she wasn’t willing to take.
When a detainee grabbed her arm and left a bruise a few months later, Katalina didn’t say anything either.
Covid has torn through immigration detention centers across the United States. Since the start of the pandemic, at least 7,202 people held by US Immigration and Customs Enforcement (Ice) have been infected with the virus, and at least eight have died. LGBTQ+ populations in immigration custody have echoed the stories of other detainees who have complained that Ice has failed to institute adequate protocols to curb the spread of the virus and has not provided ample protective equipment and medical care. But LGBTQ+ people in La Palma say the pandemic has created further challenges, making it harder for them to escape the gender-based harassment and violence many of them have long faced while locked up. More
US elections 2020
The 1994 crime bill paved the way to mass incarceration of Black Americans. Biden says his support was a ‘mistake’ More
