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Illinois Will End Cash Bail — and Limit Use of High-Tech Incarceration

Published by Anonymous (not verified) on Sun, 17/01/2021 - 11:00pm in

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Justice, Politics

Some organizers in Illinois recall getting “laughed out of the room” for supporting the abolition of money bail five years ago. But on January 13, Robert Peters, a longtime advocate for ending cash bail and now a state senator from Chicago, saw his legislative proposal to end money bail pass the General Assembly, along with a comprehensive package of criminal justice reforms written by the state’s Black Caucus. Democratic Gov. J.B. Pritzker has strongly indicated that he will sign the bill, which will make Illinois the first state in the country to end a detention system that is demonstrably racist and classist.

Labor groups, abolitionists, and local nonprofits formed a coalition to end money bail shortly after powerful state players derided activists who argued against money bail in court and led organizing drives throughout the state. Their four-year campaign, which brought pressure against the state and gifted them a close alliance with the Black Caucus, made sweeping reforms thinkable. It was the movement for Black lives and the 2020 uprising that made them inevitable.

The reforms, which would go into effect in January 2023, will avoid the most dangerous pitfalls of quietly emerging “alternatives” to money bail: algorithms that predict peoples’ “risk” and detain those given higher scores, and surveillance devices that track people who maintain legal freedom before trial. These powerful tools are already used in a vast patchwork of jurisdictions across the country. Both are opaque and profitable and have gained prominence among bail reformers in places like California, where a failed effort to end money bail last autumn would have mandated prediction and increased surveillance.

In California and elsewhere, reformers have maintained that algorithmic prediction and “electronic monitoring” constitute safe, effective, and just substitutions for money bail. Advocates and experts say the tools are just as racist and classist as the money-bail system. Now, advocates see Illinois’ victory as reason for cautious optimism about the future of pretrial justice in the state and even nationwide. The bill reduces the reach of the criminal legal system, advocates said. They look beyond the money-bail ban, to the legislation’s unprecedented restrictions on an emerging and largely hidden system of prediction and surveillance.

FILE - In this June 26, 2014, file photo inmates at the Cook County jail head off to bond court after their arrested the night before in Chicago. A federal judge has ordered Cook County Jail to take steps to protect inmates from coronavirus. (AP Photo/Charles Rex Arbogast File)

Inmates at the Cook County jail head off to bond court after being arrested the night before in Chicago, Ill., on June 26, 2014.

Photo: Charles Rex Arbogast/AP

In large swaths of the country, it is impossible to know how many people live with an electronic monitor. James Kilgore, now a leading expert on the surveillance technology, tried to find answers when he was released from an Illinois prison in 2009. He filed information requests with 35 states, but details were sparse. “When I asked for states’ analyses of their electronic monitoring, they said they didn’t have anything like that,” said Kilgore, a media fellow at the political and economic rights group MediaJustice.

MediaJustice researchers do know that monitoring is primarily leveled against poor, Black, and brown people. Surveillance supervisors frequently prevent monitored people from working jobs that have no fixed location, their 2019 report found, which rules out gig work and day labor opportunities. And other rules and restrictions are so vast that some monitored people see guilty pleas as their only escape. “If electronic monitoring had given me more movement, I probably would have fought the case,” one mother said. “My kids were not getting the healing they needed.”

In a distinctly remarkable step, any time “served” on an electronic monitor will be subtracted from a court sentence.

Once the Illinois reform package takes effect, an oversight board will publish quarterly data on counties’ use of monitoring — a basic move toward democratizing information. Electronic monitoring will become a last resort for the courts too. State prosecutors will bear the burden of proving that an accused person should be monitored, both before the person has been surveilled and after 60 days of surveillance. And in a distinctly remarkable step, any time “served” on an electronic monitor will be subtracted from a court sentence. Advocates like Kilgore say that electronic monitoring “is not an alternative to incarceration, but an alternative form of incarceration.” The Illinois legislation implicitly concurs.

All of this is unprecedented in the United States. “Illinois’ reform is the first of its kind in the country to regulate electronic monitoring,” said Kate Weisburd, an associate law professor at George Washington University. Otherwise, “it’s a bit like the Wild West. It’s expanding, and it’s being used with little restraint or limitation.”

The very companies contracted to produce the technology often write the surveillance rules and restrictions that govern monitored peoples’ lives, Weisburd added. “And it’s not just that they’re writing the rules. They also run the programs. They judge whether a violation occurs.”

Private companies outside the bail industry have been angling to profit from incarceration for years. It is paying off, and the ongoing public health crisis has opened up new markets. In his research, Kilgore has found that the Covid-19 pandemic has further normalized the use of big data and surveillance technologies within the criminal legal system. It’s gaining purchase outside the system, too, as general “contact tracing” technology — and then being fed back into carceral sites at greater rates. In Cook County, where Black residents comprise 70 percent of monitored people but 25 percent of the general populace, there were some tepid efforts to get people out of jail in 2020. As of this week, the county jail population is back to its pre-pandemic total. Electronic monitoring is up more than 50 percent.

“We have expanded the footprint of the carceral state,” Kilgore said, “by supplementing cages with technology.”

Elvia Garay, 39, from Puerto Cortes, Honduras, shows her ankle monitor she must wear after being released by Immigration and Customs Enforcement in the church hall of the Basilica of San Albino in Mesilla, New Mexico on January 2, 2019. - The single mother had raised her daughters on her own selling coconuts and bread, but only making enough to get by day to day. Her daughter Jakeline always wanted to go to school, but Elvia could not afford it in Honduras with what she earned. For these reasons, she and her daughters decided to travel to the United States any way they could. They spent three months in Mexico, going from place to place relying on donations to continue their journey, but were detained by Mexican immigration, spending 17 days in detention there. After being released, they continued their journey, making it to Chihuahua city by train, and asking for rides on buses, which eventually brought them to the border town of Ojinaga, Chihuahua, across from Presidio, Texas, where they crossed the river to be detained by the Border Patrol. After spending days in migration detention, they were able to get plane tickets to New York, where Elvia's sister lives. Elvia aspires to give her daughter Jakeline a better life and the chance to go to school. "For me, its better traveling here, because we suffered a lot in Honduras" she says about her decision to come. Inside the Basilica of San Albino, where they were given shelter the night of their release 16 year-old Jakeline sat with other girls, much younger than her, coloring pages from a coloring book, saying it is the first time she had ever done so. (Photo by Paul Ratje / AFP)        (Photo credit should read PAUL RATJE/AFP via Getty Images)

Elvia Garay, 39, from Puerto Cortés, Honduras, shows the ankle monitor she must wear after being released by U.S. Immigration and Customs Enforcement at the Basilica of San Albino in Mesilla, New Mexico, on Jan. 2, 2019.

Photo: Paul Ratje/AFP via Getty Images

As with electronic monitoring, algorithmic prediction is gaining popularity in Illinois and around the country. Known as “risk assessment tools,” the predictive instruments crunch hundreds of thousands of data points on prior defendants to predict whether an accused person in front of the court might be rearrested or skip hearings. An algorithm produces a “risk” score and on that basis recommends that an accused person be released before trial — with or without an electronic monitor — or detained. The algorithms are profiling tools for the 21st century: They process arrest histories, convictions, and missed court dates. Some use data on guilty pleas; others account for whether accused people have owned cellphones.

About 1 in 6 Illinois counties use these tools already. Cook County, home to one of the largest jail populations in the country, uses the Public Safety Assessment, an algorithm owned by former Enron trader John Arnold’s “philanthropy” company Arnold Ventures. Advancing Pretrial Policy and Research, an arm of Arnold Ventures, told The Intercept that algorithmic prediction “can play a positive role in a jurisdiction’s efforts to advance fair and equitable pretrial justice” but is not a necessary component of a just pretrial system.

Many players in the Illinois coalition against money bail wanted to see algorithms fully banned. That wasn’t possible. “Systems stakeholders remain extremely committed to risk assessment tools,” said Sharlyn Grace, executive director of the Chicago Community Bond Fund.

And even after money bail is eliminated, individual judges will continue to have vast power in the process. The legislation says that accused people can be detained pretrial if they might willfully flee from prosecution or if they are “a real and present threat to the safety of a specific, identifiable person.” Judges will decide whether those conditions are met, said Colin Doyle, staff attorney at Harvard Law’s Criminal Justice Policy Program. “A lot will depend on how faithfully judges follow the spirit of these reforms.”

But the bill does chip away at judges’ authority by limiting the function of predictive algorithms, whose release-or-detain recommendations some judges use as established fact, not mere suggestion.

In all pretrial hearings, the court will start from the presumption that accused people should be released.

When the “Arnold Tool,” as some call it, was brought to Illinois in 2015, “it was a black box,” Grace said. “So were other tools.” The reform will have data about the algorithms published on a regular basis.

And it will not mandate the use of algorithms, a victory for would-be bail reformers everywhere. Months ago, reformers might have looked to California’s money-bail ban as a model bill. It would have mandated that the tools and kept data private.

In further contrast to California’s reform, the Illinois legislation requires algorithmic calculations to be sent to defense lawyers, who will be able to challenge the predictions. And in all pretrial hearings, the court will start from the presumption that accused people should be released (California’s bill presumed detention).

Every single person accused of a crime in Illinois will potentially be eligible for release, their legal freedom intact. “If this becomes law, Illinois would have some of the strictest restrictions on who can be incarcerated pretrial,” said Doyle.

Previously “virtually anyone accused of anything was eligible for detention without bond,” Grace said. “It should be very hard for the government to take away our freedom. In reality, it was very easy.”

The post Illinois Will End Cash Bail — and Limit Use of High-Tech Incarceration appeared first on The Intercept.

Watchdog Report on “Zero Tolerance” Leads to Calls for Prosecutions, Reparations

Published by Anonymous (not verified) on Sat, 16/01/2021 - 6:14am in

When faced with the heart-wrenching accounts of children systematically separated from their families at the U.S.-Mexico border, Trump administration officials routinely relied on the same defense: that the enforcement of their so-called zero tolerance policy did not aim to break up families. If those separations did happen, they often said, it was no different than what happens to parents who are arrested in the criminal justice system every day.

The aim was to distance the administration from allegations that it was using the torturous experience of family separation itself as a means to deter migrants and asylum-seekers from coming to the United States. Advocates on the border knew better than to believe the dubious justifications of an administration that came to power vowing to punish immigrants, one that was packed with hard-line nativists and nationalists. Though federal courts had repeatedly ruled that it is illegal for the government to change its immigration detention policies in order to deter migration, it was evident from the very beginning of the Trump presidency that that was exactly what the administration was planning to do.

In April 2017, Trump’s first attorney general, Jeff Sessions, and his first secretary of homeland security, John Kelly, took a tour of the U.S.-Mexico border, where they described a plan to begin prosecuting parents who paid to have their children smuggled across the international divide. The tour followed a memo Sessions had sent to U.S. attorneys’ offices just a week earlier, in which he called for ramped up prosecutions along the border. By the end of the summer, federal law enforcement was deep into a family separation pilot program in El Paso, Texas — a program marred with problems — that then became the template for the borderwide family separation policy the following spring. The anguish caused by the policy was plain to see, and a memo released under the Freedom of Information Act soon made it clear that deterrence lay at the heart of the separations. Those truths were evident to the families impacted by the program, lawyers advocating on their behalf, and journalists reporting on the crisis; this week, they were verified in a sweeping Justice Department review.

On Thursday, the Justice Department’s Office of the Inspector General released a 93-page review of the zero tolerance policy, declaring in clear terms that the nation’s top law enforcement official was acutely aware that the policy would result in the separation of families and that he and his underlings implemented the program with no regard for the people it would impact.

“Then Attorney General Sessions was aware that full implementation of the zero tolerance policy would result in criminal referrals by the U.S. Department of Homeland Security (DHS) of adults who entered the country illegally with children and that the prosecution of these family unit adults would result in children being separated from families,” the review said, adding that the attorney general’s office “was a driving force in DHS’s decision to begin referring family unit adults for prosecution.”

With just six days remaining in the Trump presidency, Democrats seized on the findings as further evidence of the outgoing administration’s limitless capacity for cruelty. Rep. Bennie G. Thompson, D-Miss., the chair of the House Committee on Homeland Security, said in a statement that the review “confirms what we already knew: that the Trump Administration intended to separate families at the border. They knew the consequences and did it anyway.” Sen. Ron Wyden, D-Ore., added that the review showed that Sessions and his deputy attorney general, Rod Rosenstein, as well as the administration writ large, “willfully disregarded the lives of innocent children in their xenophobic crusade to criminalize migrant families. The trauma of thousands of migrant kids is on their hands. Everyone involved in this cruel and ill-conceived policy must be held accountable.”

Sen. Jeff Merkley, D-Ore, took it a step further, naming specific Trump administration officials in a statement to the press and calling for prosecutions. “It is crystal clear that Jeff Sessions, Stephen Miller, Chad Wolf, Kirstjen Nielsen and other senior Trump administration officials were not only fully aware that their policy would have traumatizing impacts on families, but also that their intention was to inflict that trauma as a means to deter people from coming to America in search of a better life,” Merkley said. “Further, it’s now confirmed that they committed perjury by lying to Congress about their intentions and actions in order to avoid accountability for their monstrous initiative.”

In 2019, after visiting a repurposed Walmart where the government was caging hundreds of immigrant children, Merkley called on the FBI to open a perjury investigation into Nielsen, who oversaw the homeland security component of zero tolerance as DHS secretary and repeatedly told the public that the government did not have a policy of family separation. The senator returned to that demand in the wake of Thursday’s report. “The architects should be investigated and prosecuted to the full extent of the law for any crimes connected with both the atrocities and the cover-up,” he said. “I am determined to work with the Biden administration to ensure that we turn that vision into a reality, and to hold the perpetrators of the Trump administration’s cruelty fully accountable.”

 Lisa Watkins, a volunteer from Families Belong Together, places teddy bears inside a cage as part of a demonstration involving 600-plus teddy bears meant to represent the children still separated as a result of U.S. immigration policies" in Washington on Monday, Nov. 16, 2020. (Photo by Caroline Brehman/CQ-Roll Call, Inc via Getty Images)

Lisa Watkins, a volunteer from Families Belong Together, places teddy bears inside a cage as part of a demonstration involving 600-plus teddy bears meant to represent the children still separated from their families as a result of U.S. immigration policy in Washington, D.C., on Nov. 16, 2020.

Photo: Caroline Brehman/CQ-Roll Call, Inc via Getty Images

The thrust of Thursday’s review was already known. In October, the New York Times obtained a draft version of the report, in which Sessions was quoted telling prosecutors, “We need to take away children,” a month before Nielsen stated in a press briefing: “We do not have a policy of separating families at the border. Period.” The Times also described Rosenstein telling prosecutors that the age of children should not factor into decisions to prosecute their parents and break up their families.

It will take years to determine the full historical impact of zero tolerance. The Justice Department review noted that “more than 3,000 children” were separated under zero tolerance. That figure is in line with earlier accounts of the policy’s impact — as a DHS inspector general’s report in 2019 noted, “thousands” of more children may have been separated under the policy, but the true total is unknown due to careless record-keeping. Those separations included babies and toddlers, children who were blind, and families who had fled staggering violence to exercise their legal right to seek asylum in the U.S. Under the program, many parents were deported without their children. Some were separated for months on end. Child welfare experts said the effect on children amounted to torture. Many families remain separated to this day, and despite an executive order from Trump ostensibly ending the practice in June 2018, reports of ongoing separations continue to surface.

The incoming Biden administration has said that it will immediately reverse the Trump Administration’s cruel and senseless policies that separate parents from their children at our border.” The incoming administration has also pledged to convene a task force to reunite families who are still separated, though it has not offered specific details on that initiative. The American Civil Liberties Union, which has an active lawsuit against the federal government over its family separation policy, called for more. “The barbaric family separation practice was immoral and illegal,” Lee Gelernt, the organization’s lead attorney in that litigation, said in a statement Thursday. “The incoming administration must reunite the separated families in the United States, but we cannot stop there. These families deserve citizenship, resources, care, and a commitment that family separation will never happen again.”

The inspector general’s review was silent on the morality of zero tolerance. Its recommendations instead focused on creating measures to improve communication and coordination between federal offices and agencies, which the report highlighted as one of the major failings in the implementation of the program. The review said that under Sessions, the Justice Department’s “expectations for how the family separation process would work significantly underestimated its complexities and demonstrated a deficient understanding of the legal requirements related to the care and custody of separated children.”

“We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations,” the review stated. “In addition, the increase in immigration prosecutions under the zero tolerance policy created operational, resource, and management challenges for the USMS, the USAOs, and the courts. DOJ officials were aware of many of these challenges prior to issuing the zero tolerance policy, but they did not attempt to address them until after the policy was issued.”

The report described Sessions’s relentless push to make zero tolerance the law of the land. As one of Trump’s first and most vocal supporters, the former Alabama senator brought some of his key aides with him to the Trump administration, including a former ICE attorney named Gene Hamilton and his communications lead Stephen Miller. With Hamilton bouncing between key positions at the Justice Department and the Department of Homeland Security, and Miller positioning himself as the president’s most trusted adviser, the cohort represented the hardest of the hard right on immigration politics in the U.S. They quickly put their knowledge of the system to work crafting the most punishing slate of policies possible — zero tolerance chief of among them.

Hamilton’s name comes up more than 140 times in the inspector general’s review, with the lifelong immigration hawk at times suggesting that he was merely following his boss’s orders. Miller is not mentioned once. Rosenstein’s name appears nearly 100 times in the review. In one instance, the former deputy attorney general is quoted celebrating the implementation of zero tolerance, saying, “I think it’s unlikely that ever in American history has there been more coordination about enforcement.”

In a statement released following the publication of the review on Thursday, Rosenstein, now a partner at a corporate law firm, expressed a new view of zero tolerance, saying, “It was a failed policy that never should have been proposed or implemented. I wish we all had done better.”

The post Watchdog Report on “Zero Tolerance” Leads to Calls for Prosecutions, Reparations appeared first on The Intercept.

DOJ Is Considering Charging Capitol Rioters With Seditious Conspiracy, Felony Murder

Published by Anonymous (not verified) on Fri, 15/01/2021 - 10:24am in

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Justice

At least 170 people are currently under investigation in connection to the January 6 assault on the U.S. Capitol, and officials expect that number to “grow to the hundreds in the next coming weeks” — a criminal probe that the top federal prosecutor in Washington, D.C., has described as “unprecedented, not only in FBI history, but probably DOJ history.”

Some 111 people were arrested or charged for actions connected to the Capitol siege as of Thursday morning, according to the Prosecution Project, an open-source research platform that monitors criminal cases involving political violence. Acting U.S. Attorney for the District of Columbia Michael Sherwin said that prosecutors were considering a growing set of charges against those involved in the riot. He said that the crimes they could be accused of span from the relatively minor trespassing dozens of people have already been charged with; to theft of mail, digital devices, and possibly national security information from the Capitol; and up to assault of a law enforcement officer, seditious conspiracy, and felony murder. “The gamut of cases and criminal conduct we’re looking at is really mind-blowing and that has really put an enormous amount of work on the plate of the FBI and field offices throughout the entire United States,” Sherwin said at a press conference this week, warning that the cases could take years to prosecute. This is only the beginning.”

Held nearly a week after the attack on the Capitol, the briefing by Sherwin and Steven D’Antuono, the assistant director in charge for the FBI’s Washington, D.C., office, was the first major update on the status of an investigation occupying hundreds of law enforcement agents and prosecutors nationwide and that has already turned up more than 100,000 pieces of digital media evidence. Lawmakers and other officials have also called for separate investigations to shed light on a historic breach of the Capitol that remains largely unexplained. After the U.S. Capitol police and law enforcement agencies across the district were caught woefully unprepared for last week’s assault, Tuesday’s briefing sought to address criticism that the FBI and the Department of Justice were too slow to respond with arrests and charges. And it came as critics were contrasting the kid-glove police response and relatively minor charges filed to date against the rioters to the treatment of Black Lives Matter and other protesters who have been violently arrested and harshly prosecuted for years.

Amid warnings of more violence to come in the next days and conflicting calls for unity versus accountability, the country is bracing for what will likely be a yearslong effort to investigate and prosecute those responsible for the January 6 attack, harrowing details of which continue to emerge more than a week later. But many who have pointed to the glaring inequities in law enforcement’s response to the Capitol assault as compared to recent racial justice or anti-Trump protests have also warned against calls for mass conspiracy prosecutions or any expansions of law enforcement resources, civil rights erosions, and domestic terrorism and anti-protest laws. Such measures, they said, will inevitably be turned against people of color and government critics legitimately expressing their dissent. As they grappled with the question of how the justice system can meaningfully address the dramatic surge in far-right and white supremacist extremism in this country, many cautioned that accountability is better sought from those who enabled and coordinated its rise, rather than through the mass criminalization of all who embraced it.

“I don’t see how we can prosecute or jail our way out of a burgeoning fascist movement in the United States.”

“I don’t see how we can prosecute or jail our way out of a burgeoning fascist movement in the United States,” Thomas Harvey, justice project director at the civil rights group Advancement Project, told The Intercept. “That’s going to take a lot more effort, and I think some of the accountability that we’ll be talking about is going to happen politically.”

Harvey and several others warned against responding to the attack with “knee-jerk” calls for expanded law enforcement powers and overly broad prosecutions. “We have a strong desire for punishment and retribution in our society, and I don’t think people on the left are completely exempt from that,” he said. As for the mass prosecution of individuals who protested President Donald Trump’s inauguration and others charged during last summer’s unrest, Harvey said, “I understand the desire to see that equivalence, but what we want is for the people who were involved in the J20 protests and people who went out to exercise their First Amendment rights after the George Floyd uprising and who were met with extreme police violence, we want those cases to be dismissed. We don’t want more punishment for people who came out on January 6 as some kind of offset.”

U.S. Capitol Police prepare to make arrests as anti-Trump protesters gather on the West Front of the U.S. Capitol on January 13, 2021 in Washington, DC.

U.S. Capitol Police prepare to make arrests as anti-Trump protesters gather on the West Front of the U.S. Capitol on Jan. 13, 2021 in Washington, D.C.

Photo: Tasos Katopodis/Getty Images

Uneven Response

The Prosecution Project’s records, which track federal charges as well as those filed in D.C.’s District Court, show that many of the 112 cases filed in connection with the storming of the Capitol involve relatively minor misdemeanors. In D.C.’s District Court, 33 people have been charged with unlawful entry and 26 with curfew violations, which carry monetary fines or less than a year in jail. Ten people were also charged locally with firearms-related crimes for carrying weapons, which is illegal in the district. Some 30 people are facing federal cases charges so far, including for violent entry and disorderly conduct on Capitol grounds and for stealing public property. So far, no one appears to have been charged with the more serious crimes prosecutors said they intend to pursue, including conspiracy and sedition. None of those who spoke at a rally held hours before the assault were charged. And no one appears to have been charged with terrorism-related charges, or in connection with the five deaths that happened during the riot, including that of Capitol police officer Brian Sicknick.

It is common for prosecutors to bring additional, more severe charges weeks or even months into an investigation, and Sherwin explained that prosecutors working the case looked for “the most simple charge we could file as quick as possible.” Some of those arrested early on have already had additional charges filed against them. Richard Barnett, an Arkansas man who was photographed with his feet on House Speaker Nancy Pelosi’s desk, for instance, was at first charged with unlawful entry, disorderly conduct, and theft. But he was later charged with an additional count of carrying an unlawful weapon in a restricted area — a charge that could result in a 10-year sentence. Officials have all but promised that far more severe charges are coming for many of those with open cases and for others who are yet to be arrested.

Still, critics noted, the charges that were filed so far stand in stark contrast with those filed in recent years against protesters accused of far less severe conduct. They pointed to federal charges — including, in some cases, terrorism charges — filed against people protesting police brutality during last summer’s George Floyd demonstrations, many of whom were arrested on the scene and immediately charged with felonies like rioting. Combined with the fact that most of those who stormed the Capitol were able to leave the scene without being stopped by police — only a dozen people were arrested during the siege — the relatively minor charges filed so far against them speak to profound inequities in the ways law enforcement has long viewed political dissent and political violence depending on the race and beliefs of those behind it.

“There’s certainly a big discrepancy in the way past protesters have been arrested and so far prosecuted,” said Vida Johnson, an attorney and associate professor at Georgetown University Law Center, who has represented protesters charged in D.C. “Here we have a largely white, largely middle-class group of people who are being charged only with misdemeanors for their role in the violent breaking into the Congress, while it was in session, while congresspeople were carrying out their constitutional duties, and they are only charged with unlawful entry,” she said. Johnson added that she expects more charges to come later, but suggested that there was plenty of evidence for them to be filed sooner. “It seems like they could easily bring more significant charges now,” she said. “It’s hard to know what the reasoning for that might be other than what people are afraid of, which is that the U.S. attorney’s office has different priorities.”

“It’s hard to know what the reasoning for that might be other than what people are afraid of, which is that the U.S. attorney’s office has different priorities.”

Prosecutors regularly overcharge or stretch the scope of the law when accusing people of crimes — often in an effort to force plea agreements. Michael Loadenthal, founder and director of the Prosecution Project, noted that following the George Floyd protests, prosecutors seemed to be “bending over backwards” to charge protesters at the federal level over alleged crimes that would have normally been a matter for state courts. He cited the examples of a protester charged with federal interstate crimes for setting a New York police car on fire on the basis that New York police engage in interstate work, and of a protester charged with an interstate crime in Utah because the police car he damaged was manufactured in Canada and used on interstate highways. Loadenthal also cited the case of a Florida protester charged with crimes relating to interstate commerce for using as a weapon a bottle of Patron liquor imported from Mexico. “During the Floyd uprising, we saw a lot of this twisting or manipulation of the law in order to take what could have been a state charge and make it into a federal charge,” said Loadenthal, contrasting those charges with the ones filed so far in connection to the Capitol assault. “We’re not really seeing that here. We are seeing people charged with pretty low-level crimes.”

Loadenthal also contrasted the response to the Capitol riot with the treatment of the nearly 200 “J20” defendants, himself included. The group, which included journalists and legal observers, were arrested on January 20, 2017, the day of Trump’s inauguration; charged en masse with felony rioting, later upgraded to conspiracy; and threatened with decades in prison. Prosecutors in the case argued for a far-reaching notion of liability that essentially sought to hold dozens of people criminally responsible for crimes — like smashing the windows of several storefronts — that only a handful of them had carried out. The case ended in an embarrassing defeat for prosecutors, who after a series of mistrials and acquittals dropped all remaining charges in summer 2018. But the prosecutions upended dozens of people’s lives for more than a year and foreshadowed the crackdown on dissent that defined the Trump administration.

While the J20 protests and the storming of the Capitol were incidents of fundamentally different gravity, “the response to J20 was a hundredfold more potent that what appears to be happening so far with this,” said Philip Andonian, one of the defense attorneys on the J20 case. “It really highlights the disparities.”

Intelligence Failures

Since the attack, the FBI seems to have mostly focused on arresting people whose images inside the Capitol went viral, including several who were identified by activists online. So far, it appears that only one person was charged in connection to some of the worst violence that took place that day, including the brutal beatings of several police officers. The bureau has also announced a $50,000 reward for information leading to the identification of individuals who left pipe bombs on the scene, leaving the impression that law enforcement is scrambling to find the most violent individuals who were at the Capitol. “Those people are still out there,” Michael German, a former FBI agent and now fellow with the Brennan Center for Justice’s liberty and national security program, told The Intercept. “I would say that the people who are willing to use violence against the police would be the ones you would want to get in the bag quickest.”

The dearth of arrests in connection to the worst violence that took place at the Capitol raised fears about more to come in the next days, a possibility which the FBI has now warned all 50 states of. But officials also seem to be struggling to articulate a clear theory of what happened on January 6. “This is certainly different from the way they have mobilized in the past,” said Andonian, referring to prosecutors’ seemingly cautious approach. “It just makes you question, what is going on?”

While a full accounting of what went wrong will likely take months to emerge, there is no question the Capitol attack was the result of a colossal intelligence failure. Conflicting reports have emerged about what the FBI and other law enforcement agencies knew ahead of the riot; some officials are saying that the bureau had not issued any risk assessments, as it regularly does during protests, and others are reporting that warnings were raised before the riot. After the attack, hundreds of rampagers were able to leave — making it harder for prosecutors to prove whether they were armed or in possession of any stolen property, or to obtain private communications and records that rioters have now had plenty of time to destroy. The Capitol — effectively a crime scene — was quickly cleaned up.

Workers clean damage near an overrun Capitol Police checkpoint a day after a pro-Trump mob broke into the US Capitol January 7, 2021, in Washington, DC.

Workers clean damage near an overrun Capitol Police checkpoint a day after a pro-Trump mob broke into the U.S. Capitol on Jan. 7, 2021, in Washington, D.C.

Photo: Brendan Smialowski/AFP via Getty Images

“You had dozens of private citizens emailing the cops, calling for security on Twitter and other places leading up to January 6, but no indication that the actual security apparatus was paying any attention to what was an openly planned insurrection online,” said Sam Menefee-Libey, an activist formerly with the group D.C. Legal Posse, which worked to support the J20 defendants.

He and others noted that the case against the J20 defendants was built in the months before the incidents in question took place. According to Andonian, law enforcement monitored the activities and conversations of a coalition of groups planning to protest the inauguration, and at least one individual working with far-right organization Project Veritas infiltrated the group. On Inauguration Day, protesters were met with a massive police response, arrested, and indiscriminately charged for simply being there. But Menefee-Libey said rather than once again mass prosecuting people, he hoped the Capitol incident would belatedly shift law enforcement’s focus to the threat posed by far-right and white supremacist extremism. “I do hope that they use this as an opportunity to develop a sophisticated intelligence map of the right-wing insurrectionists whom anti-fascists have been paying attention to for years and years,” he said, “and whom anti-fascists have already done a tremendous amount of work to identify online.”

But the growing threat posed by far-right extremist groups was hardly a secret before the Capitol assault. As The Intercept and others have reported many times, officials under multiple administrations have tried to repress reports about the rise of white supremacist groups, armed militias, and other far-right extremists. After coming under intense criticism in the last few years over its targeting of what it labeled “Black Identity Extremists,” the FBI has recently collapsed all identity-based and anti-government ideologies under broad umbrella categories, mixing nonexistent extremist groups with others posing tangible threats to public safety. The recategorization has made it virtually impossible for outsiders to monitor whether the bureau is putting its massive investigative resources toward the monitoring of anti-government militias, anti-fascist activists, white supremacists, or racial justice advocates. But it is clear that the sprawling and costly intelligence apparatus that was built in the aftermath of the 9/11 attacks failed to take seriously the most significant national security threat of the last several years.

German, who has written a number of reports warning of the threat posed by the same groups who stormed the Capitol, said he was surprised in 2017 that the FBI had seemed unaware of the individuals who rallied at the “Unite the Right” event in Charlottesville, Virginia, where a counterprotester was killed. Since then, German followed many of the same individuals as they showed up armed at rallies across the country, including several that turned violent. “How is it that police, and particularly the FBI, who tracks them interstate, didn’t understand this?” he asked. “I can’t understand how they were caught so off guard. … The violence hasn’t been hidden, it’s public. I don’t understand how they could have ignored it, except willfully.”

“The violence hasn’t been hidden, it’s public. I don’t understand how they could have ignored it, except willfully.”

FBI Director Christopher Wray and other top officials have been largely silent since the Capitol riot. But at Tuesday’s press conference, D’Antuono, of the FBI’s D.C. field office, said that the bureau had spent the weeks before January 6 looking “for any intelligence that may have developed about potential violence during the rally.” Some of that intelligence led to the arrest, days before, of Proud Boys leader Enrique Tarrio. But, D’Antuono added, “we have to separate the aspirational from the intentional and determine which of the individuals saying despicable things on the internet are just practicing keyboard bravado or they actually have the intent to do harm.”

That’s hardly a courtesy the FBI has afforded to countless activists, protesters, and even legislative staff expressing different views, who have been surveilled and interrogated without a shred of evidence that they were committing crimes or posing threats to public safety. Instead, the impunity with which far-right extremists have been allowed to operate in recent years was on clear display at the Capitol, where many seemed under the belief that their actions were authorized by the president himself. “If the president of the United States is encouraging you to act this way, and the police don’t intervene when you commit violence against the president’s political enemies, then obviously, it’s authorized,” said German. “Which is why you had so many people willing to go up there without covering their faces: These people weren’t acting like burglars in the night, they were acting as if they had the full authority of the law.”

The bust of U.S. President Zachary Taylor is covered with plastic after blood was smeared on it when a pro-Trump mob broke into the U.S. Capitol building on January 7, 2021 in Washington, DC.

The bust of U.S. President Zachary Taylor is covered with plastic; blood was smeared on it when a pro-Trump mob broke into the U.S. Capitol on Jan. 7, 2021, in Washington, D.C.

Photo: Samuel Corum/Getty Images

Justice vs. Vengeance  

There is no question that serious accountability is in order to shed light on the failures and complicity of a host of law enforcement agencies and elected officials in the months and years leading up to January 6. Civil rights advocates warn, however, that only some of that accountability can come through the courts.

Prosecutors now find themselves with the enormous responsibility of ensuring that there are consequences for unprecedented criminal conduct and a clear, if belated, message that such violence cannot be tolerated, even as it was directly called for by the president and effectively enabled by many elected officials. But the U.S. legal system already has all the laws, and prosecutors all the tools, needed to do that, civil rights advocates warn, without further infringing on civil liberties or stretching legal theories to punish more people than those who are responsible. “If this isn’t the right time to just call it for what it is and utilize the law that exists, I’m not sure where that line is,” Andonian, the J20 attorney, said, referring specifically to charges of conspiracy against those who instigated the attack.

This week’s briefing clearly signaled the Justice Department’s intent to make up for its failures by pursuing a hard line against those who stormed the Capitol. Sherwin said that his office had tasked a group of senior national security and public corruption prosecutors with the mammoth task ahead. “Their only marching orders from me are to build seditious and conspiracy charges related to the most heinous acts that occurred in the Capitol,” which he said could come with sentences of up to 20 years. “Regardless of if it was just a trespass in the Capitol or if someone planted a bomb,” he added, “you will be charged, and you will be found.”

“It would be wildly, wildly asymmetric, and wildly uneven, if these people were not charged with conspiracy.”

Several attorneys The Intercept spoke with suggested that a conspiracy case would be much more clear-cut in the Capitol riot than in many of the other instances in which prosecutors have brought similar charges, both against protesters and, increasingly, against alleged gang members. They noted that many of those who participated in the riot had deliberately planned and documented their intentions, online, for weeks leading up to the assault. And conspiracy charges, they added, could also be levied against those who explicitly incited the riot, possibly including the president. “It would be wildly, wildly asymmetric, and wildly uneven, if these people were not charged with conspiracy,” said Loadenthal, who expects such charges will eventually be filed.

But the same attorneys also cautioned against embracing far-reaching theories of liability that seek to hold hundreds responsible for the crimes of a few, and especially warned against validating unjust charges like that of “felony murder,” a crime that has landed scores of people in prison, and on death row, over murders that they did not personally commit.

“Prosecutors routinely deploy those sorts of tactics and those theories of liability against people of color,” said Johnson, the Georgetown professor. “I am not advocating for that or more of it. I want prosecutors to stop using these attenuated theories of liability against people. … I certainly would not advocate for people being charged with felony murder here, just because I think that the felony murder rule is wrong.”

Others echoed that sentiment. “I certainly don’t want to see more people prosecuted more easily with over-expansive theories of guilt,” said Andonian, pointing to the mass conspiracy prosecution of the J20 defendants as an example. “Because it will be turned around tomorrow on [Black Lives Matter], it will be turned around tomorrow on gangs made up of people of color.”

These critics also warned that a mass prosecution holding all Capitol rioters responsible for the worst conduct of some of them would only further embolden a movement that has already turned Ashli Babbitt, the woman killed by Capitol Police as she stormed the building, into a martyr. And while they said that people should be prosecuted for the crimes they committed, they also warned against tasking the courts with fixing a crisis that runs far deeper. “No one in a vacuum believes that prosecution or jailing or arrest is actually going to prevent any kinds of harms that were committed that day,” said Harvey, of the Advancement Project. “That doesn’t address the broader issues.”

The post DOJ Is Considering Charging Capitol Rioters With Seditious Conspiracy, Felony Murder appeared first on The Intercept.

Dustin Higgs, the Last Man to Be Executed in Terre Haute, Maintains His Innocence

Published by Anonymous (not verified) on Thu, 14/01/2021 - 10:00pm in

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Justice

On the night Lisa Montgomery was executed by the Trump administration, Alexa Cave Wingate arrived at the Springhill Suites in Terre Haute, Indiana, at 9 p.m. The hotel sits at the intersection of U.S. Highway 41 and Interstate 70. The interstate leads all the way to Baltimore, where Wingate’s brother, Dustin Higgs, had been sentenced to die more than 20 years earlier.

Some 3 miles in the opposite direction, in a brick building on the banks of the Wabash River, is the federal death chamber. Montgomery, the only woman under a federal death sentence, was being held in a small room adjacent to it. The execution chamber was constructed just after the passage of the 1994 crime bill, but the surrounding penitentiary predates even the interstate. When the prison first opened more than 75 years ago, the meeting of Highway 41 and Old State Road 40 made Terre Haute the “Crossroads of America” — a convenient location to bring people in federal custody from all over the country.

Higgs arrived on federal death row in January 2001, just five months before the execution of Oklahoma City bomber Timothy McVeigh. After the Trump administration restarted executions last summer following a 17-year pause, Higgs saw 10 of his neighbors taken to their deaths. On November 20, the day after his friend Orlando Hall died by lethal injection, Higgs got an execution date himself. On Friday, after the scheduled execution of Corey Johnson on January 14, Higgs is set to be the last person to die in Trump’s killing spree. Wingate plans to be a witness.

“Dustin is actually technically my first cousin,” Wingate explained when we first spoke in December. But they grew up largely in the same household in Poughkeepsie, New York, and refer to each other as brother and sister. “When Dustin first came home from the hospital, I was there,” Wingate said.

After giving birth to her own daughter in 1990, Wingate enlisted in the Army, the best of a limited set of options. “I had to find a way to take care of her, to get a skill, and my family didn’t have money for me to go to college.” Following a year stationed in South Korea, she moved to Washington, D.C. — and Higgs followed. By then, Wingate was raising two kids while going to night school at the University of the District of Columbia. “He helped me so much,” Wingate recalled.

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Dustin Higgs, left, pictured with his mother and Alexa Cave Wingate, right, in an early family photo.

Photo: Courtesy of Dustin Higgs’s defense team

For a time, their plans for the future were intertwined. Higgs wanted to open a barbershop and Wingate wanted to be a funeral director. “I said, ‘OK, well, you can come and we can start this family business. You can fix the hair. I’ll do the makeup and I’ll do the embalming and all that,’” Wingate said. “That was our original goal.” But eventually Higgs started to pull away from her.

Wingate had moved back to New York when she got a phone call in 1996 saying that Higgs had been arrested for dealing drugs. “I was like, ‘How did you keep that from me?’ He said because he knew I wouldn’t approve, so he never brought it around me at all.” But a worse nightmare unfolded in 1998, when Higgs was charged as a suspect in a horrific triple murder. The victims, Mishann Chinn, 23, Tanji Jackson, 21, and Tamika Black, 19, had been found fatally shot around 4 a.m. on January 27, 1996, on a road that cut through the Patuxent Wildlife Research Center, a federal tract of land in Prince George’s County, between D.C. and Baltimore. All three worked in local schools and did not fit investigators’ profile of women whose lives might “invite violence,” according to a true crime podcast that recently explored the case.

“I remember him saying, ‘You know I didn’t.’ And I said, ‘You don’t even have to finish that sentence. I know you didn’t.’”

Investigators found a day planner in Jackson’s purse that contained Higgs’s address and license plate number. After Higgs initially denied any involvement to police, a pair of his associates, Victor Gloria and Willis Haynes, were arrested together on federal drug charges, prompting what an investigator would later describe as an “incredible confession” from Gloria. Agreeing to be a witness for the government in exchange for a lesser sentence, Gloria testified that the three men had been hanging out with Chinn, Jackson, and Black in Higgs’s apartment when Jackson rejected Higgs. The two argued and she took down his information. Higgs became angry, telling Gloria and Haynes that Jackson “knew some people” who could hurt him. After offering the women a ride back toward D.C., according to Gloria, Higgs instead drove the group in his van to the federal reserve, where he gave Haynes a handgun and said, “Make sure they’re all dead.”

Wingate was skeptical from the start. She had never known Higgs to be violent toward women. When Higgs called her after the charges were filed, “I remember him saying, ‘You know I didn’t.’ And I said, ‘You don’t even have to finish that sentence. I know you didn’t.’”

And there were reasons to doubt Gloria’s credibility. In his earliest statements to police, he said that he’d been passed out in the backseat of Higgs’s van and woke up to gunshots. But later, he said he saw 23-year-old Higgs give 18-year-old Haynes the gun and threaten him if he did not shoot the women. At Haynes’s trial in August 2000, which ended in a life sentence, the government argued that he had not been intimidated by Higgs into shooting the women. Shortly afterward, at Higgs’s trial, the same prosecutors cast Higgs as the dominant player who had coerced Haynes into doing his bidding. On October 11, 2000, jurors convicted Higgs.

Later that month, Wingate drove down to Baltimore with the aunt who had raised them both as kids. “His lawyers asked us to testify at his sentencing hearing, to make them know what we know about Dustin, that he’s not this monster that the prosecution said he is,” she recalled. There was plenty to say. Higgs’s mother had died of cancer when he was a child, and the whole family saw how, in the absence of his father, he strived to take care of her in her final days. But Wingate felt unprepared. It was the first time she had seen Higgs in person in four years. “I’m trying to answer the questions that they’re asking me,” she said, but “I’m just crying.”

Federal prosecutors urged jurors to sentence Higgs to death. “The hard truth is, ladies and gentlemen, it would be a better world in the future without Dustin Higgs,” one told the jury. The Washington Post described how Assistant U.S. Attorney Sandra Wilkinson “displayed a large rock and likened it to the emotional weight borne by relatives of the victims, a burden she said would be lightened if Higgs were to be put to death.”

Wingate was not in the courtroom for the sentencing. Her aunt worked as a nurse and the two had driven back to New York in time for her shift. Wingate was home crocheting a blanket for Higgs when one of her cousins called. “She said, ‘Hey, Lex, you OK?’ I said, ‘Yeah, I’m fine.’ … She said, ‘Oh. So you didn’t hear.’” Her cousin told her that Higgs had been sentenced to death. “I just screamed,” Wingate said. Her kids, then ages 8 and 10, came to ask what was wrong. She tried her best to explain.

For the past 20 years, Wingate has regularly spoken to Higgs on the phone. These days, he calls her every day. But she had never visited Higgs in Terre Haute. “I can’t afford it,” she said. With the help of one of Higgs’s friends on death row, Wingate raised enough money to visit her brother for the first time. She wants to be present for his execution. “When my brother came home from the hospital, I was the first face he saw when he opened his eyes when my aunt laid him on the couch,” she said. “So I want to be the last face he sees before he leaves.”

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The sun sets over the federal penitentiary in Terre Haute, Ind., on Jan. 12, 2021.

Photo: Scott Langley

The Wrong Place at the Wrong Time

To the activists who have gathered in Terre Haute since last summer, the late-night execution of Lisa Montgomery was a blow, but not a surprise. Many had high hopes that Brandon Bernard would be saved in December, only to see his appeals dismissed by the courts and calls for clemency ignored by the president. After 11 executions waved through by the U.S. Supreme Court, few are optimistic that Johnson or Higgs will be spared.

Yet, like Montgomery, both men have legal claims that have never been fully adjudicated. Johnson has an intellectual disability that should make him ineligible for execution — and Higgs has convinced a federal court to schedule an oral argument on whether his execution would violate federal law based in part on the fact that he was convicted in Maryland, which abolished the death penalty in 2013. That argument is set for January 27 — 12 days after Higgs is supposed to die. But such things have not stood in the way of the federal executions.

Like more than half of the men on federal death row, both Johnson and Higgs contracted Covid-19 last month. Attorneys argued that lung damage from the illness would make them vulnerable to an especially tortuous death by lethal injection, which has been shown to cause pulmonary edema. On Tuesday, U.S. District Judge Tanya Chutkan agreed, delaying the executions on the grounds that killing the men now would violate the Eighth Amendment ban on cruel and unusual punishment. Johnson’s family was ecstatic over the news, according to his spiritual adviser, who had to explain to them that this would not necessarily stop the execution. Wingate was hopeful too. But in a phone call after she landed in Indiana, her brother warned her not to assume the ruling would hold.

To Higgs, the issues raised in the current litigation pale in comparison to what he has insisted upon for years: that he is innocent of the crime that sent him to death row. On a website created by his advocates, Higgs argues that not only did Willis Haynes pull the trigger that killed Chinn, Jackson, and Black, but Higgs also never ordered such a thing to begin with.

His claims are backed up by an affidavit written by Haynes in 2012, which was included in a clemency application for Higgs during the Obama administration. “The prosecution’s theory of our case was bullshit,” Haynes wrote. “Dustin didn’t threaten me. I was not scared of him. Dustin didn’t make me do anything that night or ever.” Higgs also argues that his defense attorneys failed to investigate critical witnesses — and that federal prosecutors hid evidence from his attorneys at trial.

Especially consequential was evidence that the government’s star witness, Gloria, was a suspect in a separate murder case in Baltimore, but the FBI did not pursue him in order to gain his help in the case against Higgs. In a 2014 affidavit, Higgs’s trial attorney Henry Trainor wrote that the information about Gloria would have altered the case significantly. “I consider receiving a free pass on a murder charge to be an extraordinary benefit for a witness,” he said. Had defense attorneys been aware of this deal, he added, they certainly would have used it to challenge Gloria’s credibility.

It is not uncommon to see evidence like this revealed after a person has been sentenced to death. Yet such red flags are often not enough to stop an execution. Even if Higgs did not direct Haynes to shoot Chinn, Jackson, and Black, he still would have been eligible for the death penalty under a felony murder prosecution. In some ways, his case is emblematic of the death penalty as a punishment reserved not for the “worst of the worst,” but for those who find themselves in the wrong place at the wrong time — in this case, facing federal murder charges in the District of Maryland in the wake of the 1994 crime bill.

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Charles Keith, left, brother of former Ohio death row prisoner Kevin Keith, and Roderick Reed, right, brother of Texas death row prisoner Rodney Reed, attend a rally against federal executions in Washington, D.C., on Jan. 9, 2021.

Photo: Scott Langley

The killing of Chinn, Jackson, and Black came at a time when the Department of Justice had been preparing to ramp up executions. Less than a year before the murders, in July 1995, the Baltimore Sun reported that federal prosecutors were on the lookout for cases that might warrant the death penalty. “It could be a gang lord or a murderous carjacker or a drug smuggler,” the Sun reported. “But sometime in the coming months, U.S. Attorney Lynne A. Battaglia expects to take the unprecedented step of seeking the death penalty against someone for committing a federal crime in Maryland.”

The Sun cited a number of downsides. For one, each federal death penalty case was estimated to cost $340,000 “in public defender fees alone.” What’s more, contrary to popular assumption, police seemed skeptical of the need for executions to maintain law and order. “In a recent poll of the nation’s police chiefs, the death penalty ranked last among methods they felt were effective in reducing street crime.”

Finally, there was the age-old problem of racism. A 1994 congressional study found that 89 percent of the cases in which federal prosecutors chose to seek the death penalty under the 1988 Anti-Drug Abuse Act involved Black or Latino defendants. Nevertheless, Battaglia told the Sun that the public was demanding death penalty prosecutions. “I hope we never have to consider it,” she said. “But there are circumstances where you have to take people out of society.”

Veteran private investigator Sharon Weidenfeld had been working on murder cases in Prince George’s County for years when she was hired to work on Higgs’s defense. Although her recollections are sketchy, she remembered conducting a key interview with Gloria’s ex-girlfriend, Katrina Havenner, in September 2000. Havenner told Weidenfeld that despite Gloria’s new statements to police, he told her that he’d been asleep when Haynes shot the three women. She repeated the statement in a 2006 affidavit, explaining that Gloria could never hold his liquor and would pass out after drinking. According to Havenner, Gloria also told her that Haynes had threatened to kill her and their daughter if he said anything. “Victor believed Willis and so did I,” she said.

Havenner’s claims were corroborated by Gloria himself in a 2004 interview conducted by an investigator working with Higgs’s legal team at the Federal Community Defender Office for the Eastern District of Pennsylvania. Gloria complained that he’d been incarcerated “for nothing,” since he was asleep when the women were shot, the investigator wrote in an affidavit. “When I then asked Mr. Gloria whether that meant that his statements and testimony concerning the events that occurred at the crime scene were not true,” the investigator continued, “Mr. Gloria replied, ‘That was the police.’”

“People will give statements to the police and tell them one thing and then when I interview them, they’ll tell me something else. And a lot of the times, it turns out that what they’re telling me is really the truth.”

“It happens a lot, where people will give statements to the police and tell them one thing and then when I interview them, they’ll tell me something else,” Weidenfeld told me. “And a lot of the times, it turns out that what they’re telling me is really the truth.” Police, after all, rely upon myriad tactics to get suspects and witnesses to talk, including threats and promises that can provide a powerful incentive to lie.

When Weidenfeld saw the news that Higgs had been given an execution date, she immediately recognized his name. It sickened her that he had been scheduled to die on January 15 — Martin Luther King Jr.’s birthday. She finds President Donald Trump’s execution spree especially grotesque when contrasted with his clemency record. Among those he pardoned last month is a Prince George’s County police officer who was convicted of violating the civil rights of a Latino immigrant the same year Higgs arrived on death row. The officer, Stephanie Mohr, had a history of using her police dog to threaten and attack people of color. Weidenfeld had seen this racist brutality up close in her decades working in Prince George’s County. In fact, she was instrumental in exposing the abuse.

The lead prosecutor in Higgs’s case, Deborah Johnston, was an assistant state’s attorney in Prince George’s County before she became a federal prosecutor. In a tribute following her death in 2017, the Justice Department highlighted her role in convicting “the sole two death row defendants in the District of Maryland, ensuring that the interests of the United States were fully vindicated.” Weidenfeld had a slightly different description of Johnston. “I never knew her to show any mercy for any criminal defendant, no matter their circumstances,” she said.

Battaglia, the former U.S. attorney, did not respond to emails sent this week. Neither did Wilkinson, who prosecuted Higgs’s case alongside Johnston and still works for the Justice Department. In 2014, she was recognized by then-Attorney General Eric Holder for her “superior performance” securing a conviction in a murder-for-hire case that had previously sent the wrong man to prison. “This case resulted in the exoneration of an innocent man and the conviction of the real killer,” U.S. Attorney Rod Rosenstein said at the time. More recently, Wilkinson was excoriated by a federal judge for presenting false evidence to gain a conviction in a fraud case that was dismissed due to prosecutorial misconduct. The “promotion of false significant testimony in this case does shock the conscience of this court,” the judge wrote.

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DaQuan Darby visits his father, Dustin Higgs, at the federal penitentiary in Terre Haute, Ind., in 2014.

Photo: Courtesy of Dustin Higgs’s defense team

A Prayer for Six Days

Early Wednesday morning, Wingate went to see Higgs with her son JaCobi. They had to report to the penitentiary by 7:30 a.m. She had not slept much the night before. It was the first time she was going to see her brother since his sentencing trial, and she was anxious and excited.

In their phone calls, Wingate said, Higgs has told her what it is like on the day after an execution. “He’s like, ‘It’s quiet. It’s so quiet.’ Because usually people are watching TV … or they’re talking to each other through the cell.” But after an execution, “nobody’s talking.”

In his emails to me over the past month and a half, Higgs emphasized his innocence and decried the corrupt system that sent him to death row. He shared his dismay over the execution of Bernard, who was a close friend. On the day after Christmas, he offered condolences for the bombing in Nashville, where I live.

More recently, he has described what he wants his legacy to be. For the past 20 years, he has tried “to re-educate myself by reading hundred upon hundreds of books,” he said, and more recently he taught himself to paint. “I have also wrote a children book, and a book comprised of my reflective thoughts.” The goal, he said, is to make a difference, to honor his family, and to “bring them out of poverty.”

He also worries about how his execution will impact Wingate if it goes through. She has been his protector since he was little, he said. “When the boys my age would beat me up, my sister would leap into action and protect her little brother,” he said. “That is one of many reasons that our bond is so strong today. I am 48 years old and my sister is still fighting on my behalf.”

The families of Chinn, Jackson, and Black did not respond to emails sent this week. It is not clear whether they plan to witness Higgs’s execution. “My heart goes out to them,” Wingate said. “I haven’t lost a child. I don’t know what that’s like. … I just want them to understand that it’s not my brother that did it.”

With the Justice Department appealing Chutkan’s ruling, Wingate is trying to focus on making the most of her time with Higgs. She will spend Thursday visiting her brother, possibly for the last time. She admitted to feeling some hope after he tested positive in December. It sounds terrible to say, “I’m glad you got Covid,” she said, “but that’s not what it is. … It’s just a feeling of maybe this can slow down your execution.” With the inauguration of Joe Biden on January 20, even a short delay would change everything.

“Just give me six days,” Wingate said. “Every night I go to bed and that’s all I pray for. … I don’t care if it’s a stay or a reprieve, whatever. Six days is all I pray for. Six days.”

The post Dustin Higgs, the Last Man to Be Executed in Terre Haute, Maintains His Innocence appeared first on The Intercept.

Thousands of U.S. Public Housing Residents Live in the Country's Most Polluted Places

Published by Anonymous (not verified) on Wed, 13/01/2021 - 10:00pm in

In some ways, they couldn’t be more different. Gerica Cammack is a Black woman from Alabama; Floyd Kimball is a white man from rural Idaho. Yet they’re facing a similar ordeal. They’re both single parents, forced by difficult circumstances to live in government-subsidized housing surrounded by pollution that is, or could be, poisoning their children. Like tens of thousands of people across the country, they live near, or on, some of the most toxic places in the nation. And the government has failed to protect them.

In 2019, Cammack moved into the Collegeville Center, a public housing complex in north Birmingham, Alabama. She knew that moving into the neighborhood came with risk. The complex sits near a bevy of industrial sites that produced steel and iron and spewed pollution over nearby residents for decades. She’d lived up the road years earlier and remembered how the fumes could be so overwhelming that the taste of them would linger in her mouth. But she was pregnant, homeless, and grateful for the apartment, so it was a danger she had to face.

Little did she know that the Environmental Protection Agency had classified the area as a Superfund site, signifying that it was one of the most polluted places in the country. Testing had found the soil in her housing complex contaminated with lead, arsenic, and other carcinogens.

More than 2,000 miles away, Kimball and his 4-year-old son live on a Superfund site as well. The federally subsidized apartment complex in Wallace, Idaho, they moved into three years ago, after Kimball lost his job, sits on one of the largest Superfund sites in the country. Though pollution from heavy metal mining was documented decades ago, neither the local nor federal government has moved people from dangerous conditions or sufficiently clean up the contamination. Meanwhile, many residents, including Kimball’s young son, have been exposed to dangerous amounts of lead. Kimball’s 4-year-old son hasn’t yet begun to speak.

An EPA analysis obtained by APM Reports and The Intercept found that more than 9,000 federally subsidized properties — many with hundreds of apartments or townhouses — sit within a mile of Superfund sites. Those properties are in 480 cities in 49 states and territories. But even that is an undercount. The list of 9,000 properties doesn’t include several subsidized-housing complexes within a mile of Superfund sites.

In most cases, the federal government has chosen not to relocate housing complexes near Superfund sites and made only piecemeal attempts to address the health threats. Housing officials often don’t inform people who move into these housing complexes that a Superfund site is nearby. Neither the EPA nor the U.S. Department of Housing and Urban Development, the two federal agencies primarily responsible for protecting residents, regularly monitor the potential health threats to residents from nearby environmental pollution. In fact, some housing complexes near Superfund sites haven’t been tested for contamination in years, according to the APM Reports and Intercept investigation. Even when testing is conducted and dangerous contamination is found, the pollution isn’t always cleaned up.

As a result, thousands of residents continue to live in places that are potentially dangerous to their health.

The problem is rooted in a history of the federal government developing public housing on cheap land in industrial, polluted areas. The approach was summed up in 1966 by Benjamin Lesniak, then executive director of the East Chicago Housing Authority in Indiana, when he noted the city’s lack of available land for new public housing and floated a possible solution. “We can build them in vacant areas that are surrounded by industries,” he said. Lesniak went on to oversee the construction of a housing complex on the site of an old copper smelter and a lead refinery in the city. (The complex was emptied in 2016 after residents were exposed to elevated levels of lead and arsenic for decades.)

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Floyd Kimball and his 4-year-old son Steve in Wallace, Idaho, on Jan. 5, 2021. They have lived in public housing located on the Bunker Hill Superfund site for four years.

Photo: Rebecca Stumpf for The Intercept

Experts say many of the communities identified by APM Reports and The Intercept likely couldn’t be built today in their current locations under state environmental regulations enacted after the EPA was created in 1970. Nearly a third of the roughly 9,000 public housing properties flagged by the EPA for their proximity to Superfund sites were built before environmental assessments were required under federal regulation.

The Comprehensive Environmental Response, Compensation, and Liability Act — commonly known as the Superfund law — passed in 1980 established a program under the EPA to clean up some of the nation’s most polluted sites and hold corporations accountable for their environmental messes. A tax on polluters funded the program in its early years, but it expired in 1995. Since then, the government has had to pay for these massive cleanups, many of which have stalled because of funding shortages.

Nearly a third of the roughly 9,000 public housing properties flagged by the EPA for their proximity to Superfund sites were built before environmental assessments were required under federal regulation.

The residents — many of whom can’t afford to live anywhere else — are left in a bureaucratic gap between various governmental agencies that lack the authority or resources to directly address the problem. The EPA and state environmental agencies have struggled to clean up Superfund sites and, in many instances, can’t confirm that they’ve contained the threat to human health. Local housing authorities lack the money to address pollution or test for contaminants, and it’s rare for the Department of Housing and Urban Development to analyze the health risks or relocate people from hazardous housing complexes despite its own regulations requiring the agency to provide tenants with a safe and healthy place to live.

The problem is well known to housing officials. The inspector general’s office that monitors HUD requested money in its 2020 annual budget to investigate the threat to public housing residents from Superfund sites, writing in its request, “The dangers posed to HUD programs by inadequately responding to this looming risk of unsanitary and unsafe housing are incalculable.”

Following the East Chicago crisis, EPA and HUD officials agreed to meet quarterly to share information and address housing sites where there was concern about residents’ health, according to a document from an early meeting between the two agencies in 2017. Among the goals of the collaboration was to “coordinate communications with public housing residents.” The EPA contends that it communicates with residents who live near Superfund sites. “Notification to the community would occur, at a minimum, when a site is proposed and listed [as a Superfund site], and community involvement activities would continue throughout the cleanup process and be tailored to meet community needs,” an agency spokesperson wrote in an email.

Superfund cleanups can take decades, though, and residents who move into a complex are often not informed of the nearby pollution. “Sometimes people know anecdotally,” said Michael Kane, executive director at National Alliance of HUD Tenants, “but most of the time people that live on toxic sites don’t know their kids are going out and playing on contaminated land, with lead and other toxins.” Those who do know about the contamination receive little guidance from the government aside from general tips from health and environmental officials, such as monitor children so they don’t eat soil and don’t chew gum while gardening.

Eugene Goldfarb, a retired HUD official who oversaw the implementation of environmental regulations dating back to the EPA’s earliest days, cautions that “just because there’s contamination on the property doesn’t mean that there’s a pathway to adversely affect health and safety. That’s an important distinction.”

But hundreds of documents — including environmental assessments and reports drawn up by private consultants and government officials across the country — gathered by APM Reports and The Intercept reveal for the first time what’s known about environmental hazards at public housing properties, which are occupied disproportionately by children, the elderly, and disabled people. Combined, the records show a troubling pattern, much like the one in Birmingham and Wallace, where people have been left exposed to hazardous conditions even years after the EPA or state officials found nearby pollution.

The few checks created by HUD often fall short. While local and federal housing officials are supposed to provide a safe environment, they aren’t required to test to determine if environmental hazards pose a threat to human health. In fact, federal and state regulations typically require housing officials to test for contaminants primarily in one circumstance: when they are seeking money to redevelop or improve a property. It’s a system that critics say prioritizes shielding lenders and developers from liability over residents’ health.

Robert Weinstock, an attorney with the University of Chicago’s Abrams Environmental Law Clinic who recently co-authored a report on subsidized housing near toxic sites, said the problem is that a number of government agencies on the local, state, and federal levels are involved and none of them have taken decisive action to protect residents’ health. “Who is responsible?” Weinstock said. “Everyone and no one at the same time.”

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The view from a housing complex in North Birmingham, Ala. In the 1960s and ’70s, the Housing Authority of the Birmingham District built hundreds of public housing units for Black families in the most polluted part of the city.

Photo: Miranda Fulmore for The Intercept

A City of Iron and Steel

Since its founding in the years following the Civil War, Birmingham has been a center of steel and iron production. And the Collegeville Center public housing complex on the city’s north side, built in 1964 on the edge of a pipe foundry, is surrounded by facilities that have fueled those industries.

The neighborhood faces a toxic threat both past and present. Poisonous remnants of heavy metal production at facilities long since closed — carcinogens like lead and arsenic — lace the soil. But there is also pollution that is ongoing and severe.

Today, the census blocks where the Collegeville Center sits in North Birmingham are subject to more dangerous emissions from local factories than 95 percent of census tracts nationwide, an analysis of EPA data shows. The area’s toxic concentration scores — a measure of chemical releases weighted by toxicity — are three times higher than the citywide average. The top polluters, according to EPA data, are two facilities that produce coke, a fuel derived from coal that’s used in the smelting of iron ore, and a steel plant. They have long been under scrutiny for dangerous emissions.

In 2018, the year before Gerica Cammack moved in, Birmingham Mayor Randall Woodfin sounded the alarm about Collegeville Center when he warned the EPA’s top administrator that “thousands remain at risk including the 1,070 people living in 394 public housing units and 751 children attending Hudson K-8 school.” Cammack knew there was pollution nearby, but she had little way to know how bad it was. And toxic chemicals in the air weren’t her top concern at a time when she was so broke that she slept on the floor.

Like many residents in North Birmingham, she had come to think of pollution as simply a fact of daily life. People have long adapted by closing windows or taking laundry off the lines when the air grew thick with ash or smog. They grew up in it, worked in it, ate in it, and played in it.

Like many residents in North Birmingham, she had come to think of pollution as simply a fact of daily life.

After moving in, Cammack, 27, tried to make a home for herself and her daughter, who is now 15 months old. Cammack’s grandmother taught her to garden when she was growing up, and it always lifted her spirits. But when she tried to grow flowers outside her apartment, nothing would take in her front or backyard. She blames the soil’s infertility on the pollution that’s hung in the air and sunk into the ground in North Birmingham for as long as she can remember.

In the 1970s, Cammack’s mom, aunts, and grandparents lived in the nearby North Birmingham Homes, a public housing complex less than a half-mile from Collegeville Center. The developments are divided by an area zoned for heavy industry and includes a metals scrap yard, a foundry, and a coke plant.

As in North Birmingham, where most residents are Black, the environmental burden from Superfund sites across the country falls disproportionately on people of color, who are also overrepresented in public housing for families. In the 1930s, public housing was built for people of all races temporarily laid low by the Great Depression. But over the years, the proportion of residents who were Black and Latinx grew. “Because of housing segregation and housing discrimination, in many cases across the country, low-income whites were better able to escape this housing,” said Robert Bullard, an advocate and scholar who is sometimes called the father of the environmental justice movement. “People of color were more likely to be stuck in these areas with high concentrations of pollution.”

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Gerica Cammack has tried to make a healthy home for herself and her daughter despite the environmental hazards that surround them in North Birmingham, Ala.

Photo: Andi Rice for The Intercept

Unbeknownst to Cammack, the Agency for Toxic Substances and Disease Registry, an arm of the U.S. Department of Health and Human Services, had issued an alarming assessment of the community that includes Collegeville Center in 2017 that “daily exposure to soil at properties with elevated lead concentrations could have in the past and could currently be harming their health,” particularly children.

That report was based, in part, on soil testing that the EPA conducted throughout the neighborhood between 2012 and 2014 that found dangerous amounts of lead and the carcinogen benzo(a)pyrene in more than a dozen samples taken from the Collegeville Center alone.

Benzo(a)pyrene is a chemical byproduct of coal when it’s cooked to produce coke for processing iron and steel. Long-term exposure to benzo(a)pyrene is linked to lung, stomach, and skin cancer. It’s also proven to cause miscarriages and birth defects in lab animals. Lead exposure can cause permanent brain damage, and children and pregnant women are most susceptible.

Cammack had no idea that the soil around her home had a history of contamination and, like the parents of 90 percent of the other young children who live in Jefferson County, never got her daughter tested for lead exposure.

The EPA began investigating the area back in 2009. Eventually the agency drew the Collegeville Center, North Birmingham Homes, and several industrial facilities into an area deemed the 35th Avenue Superfund site. By 2014, the EPA proposed adding it to the National Priorities List, which gives areas preference for further investigation because of known or threatened releases of hazardous substances. But that effort was beset by controversy, and even after years of study and remediation, people are still exposed to dangerous soil and air emissions.

A coal executive hatched a secret scheme to keep the 35th Avenue site off the National Priorities List to avoid cleanup costs.

There’s been so much industrial churn in North Birmingham over the past century that the EPA can’t pinpoint the exact source of the contamination. By the agency’s calculation, the area has featured at one time or another: 20 foundries and kilns; seven coal, coke, or byproducts facilities; 26 scrap and metal processing plants; and four chemical plants. Many of the companies went out of business in the late 1970s and 1980s, according to a city planning document, when enforcement of environmental regulations started to cut into profit margins.

The EPA’s investigation and testing found high levels of air pollution and, in 2014, the agency assigned the 35th Avenue site the maximum score for likely soil exposure by residents under the Hazard Ranking System, the scorecard for determining eligibility for the National Priorities List.

But an executive from Drummond, a coal producer that owns the nearby ABC Coke plant named as one of the potentially responsible polluters, hatched a secret scheme to keep the site off the National Priorities List. He and a lawyer representing the company were eventually criminally charged with quietly leading an effort to get local, state, and federal elected officials, including Alabama’s attorney general, to oppose the additional oversight. The scheme became public and ended in scandal. A state representative and a regional EPA administrator pleaded guilty to criminal charges as well.

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The map shows the 35th Avenue Superfund site in North Birmingham. The Collegeville Center and the North Birmingham Homes both are within the boundary of the Superfund site, an area that’s endured industrial pollution for years. Though the EPA says the area is cleaned up, the agency’s own records show that there are still toxic chemicals in the area. The map may not have the full extent of the Superfund location.

Map: APM Reports, The Intercept

Though the scheme was exposed, the 35th Avenue Superfund site wasn’t added to the priorities list. While the corruption and political drama initially drew more attention to the neighborhood’s problems, Haley Colson Lewis, an attorney with GASP, a local environmental advocacy organization, said the momentum for getting the site on the National Priorities List has since stalled.

The EPA did conduct an initial cleanup of the Superfund site and the neighborhood, but records obtained by APM Reports and The Intercept show that environmental officials knew residents would likely continue to face health dangers from ongoing pollution. The EPA warned in 2011 that dangerous ash would only continue to migrate from the coke plant that sits less than 3,000 feet away from both public housing complexes. “The surrounding community will continue to experience deposition from the plant unless controls are put in place,” the EPA’s on-scene coordinator wrote in a memo to his peers as they prepared to expand testing and cleanup in the area.

The agency has since shifted its stance. EPA officials now say they believe, based on a few samples from the surrounding neighborhood, that contaminated dirt brought in from nearby industrial sites is to blame for much of the pollution; they still maintain that the public housing is clean.

EPA records show that during the 2014 cleanup of the public housing, the agency left in place lead, arsenic, and benzo(a)pyrene in some areas because the pollution didn’t exceed the level that would trigger removal. The agency hasn’t conducted significant soil testing at the housing complexes in six years.

The current hazards in the soil at the housing complexes are unknown; the agency hasn’t conducted significant soil testing at the housing complexes in six years.

Rep. Terri Sewell, a Democrat who represents North Birmingham in Congress, said the only way residents can rest assured that they are safe is if federal and local officials’ oversight is vigilant. “This problem didn’t happen overnight,” she said. “It’s not going to be solved overnight.”

Residents have come to distrust government pronouncements about the safety of the area. That’s in part because whenever the EPA has conducted environmental testing in the past decade, the results show pollution levels worse than people were led to believe. For instance, following the first tests by the EPA back in 2009, when dangerous levels of the benzo(a)pyrene and arsenic were found at two elementary schools that sit next door to each of the public housing complexes, the area was cleaned up and given the all-clear. Based on those limited results, the federal Agency for Toxic Substances and Disease Registry concluded exposures to soil in the area “do not present a public health hazard.” That conclusion would be proven false when the EPA soon found further contamination in the area that led to the 2014 cleanup.

The fact that the EPA can’t confirm health risks have been eliminated at the 35th Avenue Superfund site or the surrounding area — which includes two coke plants, asphalt batch plants, pipe manufacturing facilities, steel producing facilities, quarries, and a coal gas holder and purification system facility — has led to distrust among residents and environmental activists.

Charlie Powell, an activist with the local environmental justice group People Against Neighborhood Industrial Contamination, or PANIC, wonders how officials consider the site cleaned up with so much pollution still spewing over the community. “How can you say it is not going to happen again, but the plants are still doing the same thing?”

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After the EPA named ABC Coke one of the potentially responsible parties for contamination across the 35th Avenue site, an executive from Drummond, which owns the plant, hatched a plan to shield the company from liability.

Photo: Andi Rice for The Intercept

Opening Pandora’s Box

Activists like Powell believe that residents should be moved out, and the area should be rezoned for industrial use only.

The Housing Authority of the Birmingham District may have other ideas. In a 2018 planning document, the housing authority notes that it would like to redevelop the North Birmingham Homes, which, like the Collegeville Center, also have “widespread environmental issues.” Using public money to redevelop the property would require thorough environmental reviews. And therein lies an irony, critics note.

“It’s a process to protect projects, not people.”

Some of the same public housing properties that haven’t undergone a thorough environmental assessment in years, despite their proximity to a Superfund site and large amounts of pollution, would be studied to pave the way for a redevelopment project.

“It’s a process to protect projects, not people,” said Weinstock, the Abrams Environmental Law Clinic attorney.

Such environmental reviews of polluted properties sometimes turn up more toxic pollution than anyone was expecting. That’s what happened in Anniston, Alabama, which lies 50 miles east of Birmingham. The local housing authority opened Pandora’s box when it attempted to rebuild three of its largest public housing complexes near the Anniston PCB — polychlorinated biphenyl — and Lead Superfund sites.

As in Birmingham, numerous officials had claimed over the years that the site had been cleaned up and the housing complexes were safe. But when consultants conducted the environmental review, they found traces of PCB, lead, and industrial fill on three separate sites where families lived for years.

APM Reports and The Intercept collected similar environmental reviews from 75 properties clustered around Superfund sites across the U.S. and found that consultants flagged chemicals and toxic waste — including lead, arsenic, chromium, and PCB — at half the properties. In other cases, the findings were inconclusive, the inspections were only visual, or consultants cleared the properties based on data provided by companies that would have to pay for remediation.

HUD’s inspections look for building-related hazards like lead paint and asbestos but not environmental threats.

In Anniston, the EPA gave the properties a clean bill of health years ago and, like most of the public housing that sits within a mile of a Superfund site, they passed HUD’s health and safety inspections repeatedly. That’s because HUD’s inspections look for building-related hazards like lead paint and asbestos but not environmental threats. The consultants’ conclusions only affirmed the suspicions of David Baker, a local environmental activist who sits on a local Superfund advisory committee, that more cleanup is needed.

Baker spent the past couple of years trying to get a fence put up around one of the last parts of the community to be cleaned up, a PCB-contaminated stretch of Snow Creek that runs along the north east corner of the Glen Addie apartments where kids play, trying to catch fish, turtles, and tadpoles. The housing authority had big plans to modernize the complex, but the problems revealed in the environmental testing, Baker said, only affirms what he’s been saying all along: “Anniston needs to be retested.”

Meanwhile, only one of the public housing redevelopments is moving ahead. The other two are still on hold.

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Living on Idaho’s “Megasite”

Floyd Kimball’s son, Steve, was just 7 months old in 2017 when the two moved into Canyonside Townhouses in Wallace, Idaho, which sits on the massive Bunker Hill Superfund site. Floyd, who had recently lost his job as a cook at a resort, was relieved to find an affordable two-bedroom. And he and his son, a happy and playful toddler, quickly settled into their new home. But even as Steve thrived in some ways, he began to lag in others. At 2 years old, he didn’t talk or babble the way other toddlers did, which worried his father.

Last year, Floyd brought Steve to a pediatrician who tested his blood and found elevated levels of lead. Afterward, Floyd called the local health department, which then tested for lead at Canyonside Townhouses in July 2019. The results pointed to the source of the boy’s elevated blood lead level — or, rather, to several sources.

Lead, a heavy metal associated with speech delays and other developmental problems, was detected in the dust on Floyd’s boots; on the gray couch where Steve often colors and watches cartoons; on the stairs leading up to the boy’s bedroom; and in several areas on the property where he and other children in the complex often played, including on the playground equipment, in the sandbox, and on a nearby hillside.

A specialist with the local health department also measured lead on Floyd’s car keys, which Steve liked to put in his mouth at the time. The level of lead on the keys was 1,110 parts per million, almost three times the safety threshold the agency set for soil. In a vacant field across the road from the apartment complex, a former mining spot where Steve and other children play, lead was measured at 19,810 parts per million: almost 50 times the action level that would trigger a federal cleanup.

APM Reports and The Intercept hired contractors to conduct independent testing at three federally subsidized housing complexes on the Bunker Hill Superfund site, where decades of heavy metal mining contaminated a huge area. The results confirmed the presence of lead in house dust — the best predictor of blood lead levels in children — at each of the complexes.

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An empty field and a playground at Canyonside Townhouses, seen on Jan. 5, 2021, is the primary area where children of the public housing complex play in Wallace, Idaho.

Photo: Rebecca Stumpf for The Intercept

In the Amy Lyn Apartments, a subsidized family complex in Kellogg, Idaho, just a short drive from the Kimballs’ apartment, lead was found on the laundry room floor. Though the EPA doesn’t have a cleanup level specifically for laundry rooms, the level of the neurotoxin was more than 13 times higher than the actionable levels for the floors of apartments, according to analysis of samples conducted by American Scientific Lab, an EPA-approved independent lab hired by APM Reports and The Intercept.

In the nearby Shoshone Apartments, the APM Reports and Intercept testing discovered lead in the corner of an apartment floor, where a children’s scooter and toys were stored, in an amount above a safety level set by the EPA.

In an email, a spokesperson for the local housing authority emphasized the agency’s concern for the health and safety of residents of the Shoshone Apartments and noted that the complex underwent extensive remediation in 2002 and an environmental review in 2015.

At Canyonside, lead was detected above EPA’s safety threshold for apartment floors on the playground and on the floor of Kimball’s apartment. (The EPA does not have a standard for playground floors.) For Floyd, the presence of lead in the samples was devastating but not surprising. From his apartment window, he regularly sees heavy machinery moving contaminated earth.

In most places throughout the country, the presence of lead at such levels would trigger immediate action. But in these three federally supported housing complexes, the heavy metal is allowed to be present at significantly higher levels because they are on Bunker Hill, one of the largest Superfund sites in the U.S.

The Canyonside complex, 24 apartments arranged into three neat rows set in a woody hillside, was built in 1982, after a century of metal mining had turned the surrounding area of north Idaho into one of the most polluted places on Earth. The complex was finished just a year before the EPA first deemed a 21-square-mile area around the Bunker Hill mine a Superfund site. Though some environmental experts felt the only safe solution was to move the residents from the area, this was never done.

The area was once the largest silver-producing region in the world. Bunker Hill was the largest lead and zinc mine in the U.S., and the Bunker Hill lead smelter was also the nation’s largest. The industry left behind more than 100 million tons of mine waste — including aluminum, antimony, arsenic, cadmium, iron, manganese, zinc, and lead — much of which was dumped into local rivers and streams. Trees couldn’t grow in the metal-laden soil. Fish disappeared from the waters. Livestock routinely grew sick and died. And local residents experienced brain damage on a massive scale.

Young children like Steve are the most vulnerable to the effects of lead. Today, the Centers for Disease Control and Prevention recognizes that no level of lead is safe, while setting 5 micrograms per deciliter of blood as the level at which “public health action” should be taken. In 1976, after a smelter fire caused the largest lead poisoning event of children in U.S. history, the mean blood lead level of children living nearest the Bunker Hill smelter was 68 micrograms per deciliter — more than 13 times the current threshold, according to “Living With Lead,” a book about the environmental history of the mining area.

Concerns about the lead poisoning of Kellogg’s children helped fuel the 1983 decision to designate Bunker Hill as one of the nation’s first Superfund sites. At the time, the Superfund program was still paid for by the tax on polluting industries, which was fortunate since by then both the Bunker Hill Mine and Gulf Resources & Chemical Corp., which had bought the mine years earlier, had declared bankruptcy. In 1998, the site was extended to include the area surrounding the “box,” as the original site is known. The whole site — or “megasite,” as the EPA calls it — is now larger than Delaware.

In 2005, a National Academy of Sciences report on “Superfund and Mining Megasites” predicted that the cleanup of Bunker Hill, which had already been underway for more than two decades and cost hundreds of millions of dollars, would take centuries more and additional hundreds of millions of dollars to remediate — and even then the area would remain polluted.

Floyd Kimball, and his four-year-old son Steve, have lived in public housing located on the Bunker Hill Superfund site – or megasite, as the EPA refers to the 1,500 square mile area in the city of Wallace, Idaho, for four years. In 2018 the soil levels were tested at the public housing complex, and the management at the housing site tried to cover up the toxic levels by throwing a pizza party for the residents. Kimball, in turn, had his son's blood lead levels tested, which came back with a reference value of over eight micrograms per deciliter. Kimball's was around six micrograms per deciliter. Kimball believes the lead poisoning has contributed to his son's delay in speech development. Kimball is growing increasingly frustrated that nothing is being done to remediate the areas where the residents live and the children play at his housing complex. Rebecca Stumpf for The Intercept.

Floyd Kimball outside his home in Wallace, Idaho, on Jan. 5, 2021.

Photo: Rebecca Stumpf for The Intercept

Nuclear Weapons Against BB Guns

The Superfund program, one of the federal government’s most ambitious environmental efforts, has struggled financially and politically amid ongoing budget cuts. Though the EPA works hard to get companies to cover some of the costs of cleaning Superfund sites, “they’re never covering the actual cost of the damage they caused,” said Joel Hirschhorn, who spent much of his career working on Superfund issues, both through the Office of Technology Assessment — which advised Congress on scientific issues — and as an independent environmental engineering consultant.

While the Trump administration has claimed success in the Superfund program, pointing to its role in the cleanup of 27 polluted sites, Jim Woolford, who was director of the EPA’s Superfund program from 2006 until retiring last April, disputed that characterization. Woolford said some of these sites were cleaned up by previous administrations and pointed out that there is a long list of sites awaiting cleanups that have yet to be funded.

“The backlog is a train wreck that has been long in the making,” said Woolford, who estimates that the cost of fully remediating the sites awaiting cleanup to be between $750 and $850 million. “I was forthright with the [Trump] administration about needing more money, and they just pushed back and said ‘you’re not going to get it,’” he said.

In part due to this lack of funding, most cleanups are only partial. “Between 80 and 90 percent of our sites leave some contamination in place,” Woolford said.

The Superfund program’s struggles are especially evident at Bunker Hill. The massive amounts of pollution made cleanup extraordinarily challenging, and the powerful local mining industry made it harder still, said Hirschhorn, who worked on dozens of Superfund cleanups. “They fought against better testing of blood in kids, better testing of lead in soils. They were just against protecting public health and safety.”

The result, Hirschhorn said, was a “failed remedy” that resulted from the government’s inability to stand up to industry. “EPA didn’t stand a chance. They didn’t have good enough staff or the political leadership willing to go against the major corporations.” He described the power mismatch between the agency and mining companies as “nuclear weapons against BB guns.”

With residents still potentially exposed to dangerous heavy metals, government officials are relying on long out-of-date health standards. And they’re not monitoring the health of all children in the area.

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A map of the area surrounding the Canyonside apartments that the Panhandle Health District sent Floyd Kimball along with test results showing the presence of lead in his home.

Map: Panhandle Health District

More than 7,100 yards and public spaces have been cleaned up and 581 roadway segments recently paved at the Bunker Hill site, work that an EPA spokesperson described as “dramatically reducing people’s exposure to lead and other metals.” But other goals remain unmet. And at least two of them — the cleanup threshold for soil and the children’s blood levels noted in the site’s “remedial action objective” — are dangerously out of date. In 2012, the CDC lowered the blood lead “level of concern” nationally from 10 to 5 micrograms per deciliter. But the Bunker Hill site has yet to update its objectives to meet those standards. Instead, the EPA’s official “remedial action objective” for the site, which was created in 1991, requires that less than 5 percent of children tested for lead have blood lead levels above 10 micrograms per deciliter without specifying how many children overall should be tested.

The National Academy of Sciences committee recommended universal blood lead screening of children between ages 1 and 4 on the Bunker Hill site. But that hasn’t happened. While there is no question that children’s blood lead levels have steadily fallen in the area since the worst of the pollution crisis, lead exposure persists and some children are still falling through the cracks.

In 2019, the most recent year for which data is available, only 169 children under 6 living within the bounds of the original site had their blood tested for lead, according to the Panhandle Health District. Eighty-two of these children were found to have lead in their blood; 23 of them had blood lead levels above 5 micrograms per deciliter — the current level of concern identified by the CDC. Eight children had blood levels above 10 micrograms per deciliter. And two had levels above 20, a level at which children begin to experience irritability and loss of appetite.

Lasting neurological damage can occur at levels well below the 5 micrograms per deciliter set by the CDC or even the 10 micrograms per deciliter used in Bunker Hill. An increase in children’s blood lead level from less than 1 to 10 micrograms per deciliter was associated with a 6-point drop in IQ score, according to a 2005 study in Environmental Health Perspectives. But it’s impossible to know how many children living on the Bunker Hill site are exposed or had lasting neurological damage because some aren’t tested.

In 2016, 2017, and 2018, fewer than 150 children in the center of the site had their blood tested for lead each year. Among those who were tested, a significant minority had blood levels above the current safety threshold. The 125 children under 6 tested in the box in 2017 likely represented about half of the children in the area, said Andy Helkey, Kellogg Remediation Program Manager at the Idaho Department of Environmental Quality.

Helkey said that the blood testing results showed that Bunker Hill technically met the EPA’s objective for the site of having less than 5 percent of children with blood lead levels above 10 micrograms per deciliter. But he acknowledged that some individual communities within the Superfund site didn’t meet that almost 30-year-old goal. And many children in the area still haven’t been tested.

Though the EPA and companies responsible for the pollution in Bunker Hill have already spent more than $1 billion cleaning up the site, the health department lacks the money to determine how many children live in the epicenter of the Superfund site and to test them, Helkey said.

Meanwhile, the level of lead that triggers remediation at the Superfund site — 1,000 parts per million, which was set in 1991 — is more than twice the level that the EPA set for residential soil in the rest of the country: 400 ppm. So when local health officials found lead present at 401 parts per million on the decking of the playground at the Canyonside complex, they weren’t legally bound to remove it. Asked about the discrepancy, an EPA spokesperson wrote in an email that the agency “is considering various options to accelerate protective and efficient Superfund residential lead cleanups.” The spokesperson also acknowledged that individual sites may have different cleanup levels for lead that depend on “site-specific conditions, such as the degree to which lead is bioavailable.”

There’s little question that many people living on Bunker Hill are suffering from lead exposure. “Pretty much everyone I talked to in a long-term family had long-term health problems,” said Sue Moodie, an epidemiologist and health researcher who spent several months interviewing residents in 2008 and 2009. “There were a lot of reports of children getting really frustrated in school and having behavioral problems and breaking things.”

For Kimball, the revelations about the likely sources of the lead in his son’s blood haven’t helped him prevent further exposure. After he received the test results from the health department, Kimball said he asked the building management to address the problem, but no action was taken. “I talked to everyone I could possibly talk to, but nobody seemed to want to do anything,” said Kimball, who keeps a thick file of his letters seeking help about lead.

The local health department was also of little help. Valerie Wade, an environmental health specialist with the agency, suggested that Canyonside Townhouses install additional play areas on site so that the children in the apartments would be less likely to go to the highly contaminated lot across the street, according to a health district spokesperson, who said that “the apartment complex said they did not have funding to do so.”

Wade explained the situation this way to Kimball in an August 2019 email: “Unfortunately, we cannot force them to do anything,” she wrote, going on to encourage Kimball to “steer clear of the contaminated areas and get inventive with things to do with” your son.

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Although the local health department did not remove lead from the apartment complex, it did hold a pizza party at which children were encouraged to wash their hands.

Flyer: Panhandle Health District

A few days after sending Kimball the lead test results, the health department did hold a pizza party at Canyonside at which Wade spoke about the dangers of lead and encouraged children to wash their hands. In an email, a spokesperson wrote that the health department also works to protect children from lead by providing blood lead screening; bodysuits, respirators and other protective equipment to people exposed to lead dust; and free disposal sites for contaminated material. Syringa Property Management, which manages the Canyonside and Amy Lyn apartments, did not respond to multiple requests for comment.

While the local health department didn’t substantively address the immediate lead threat facing Steve Kimball at Canyonside, federal agencies were aware that something could and should be done to address the environmental risks facing residents of subsidized housing on Bunker Hill. At a November 2017 meeting between HUD and EPA officials, Bunker Hill was one of the first sites mentioned, with at least one meeting attendee noting that human exposure was not under control at the site. At the meeting, the agency staffers spoke hopefully about future conversations about Bunker Hill and their plans to share maps and other information with other agencies.

But three years later, the lead contamination persists. Kimball is still waiting for help, and his son, now 4 years old, still hasn’t begun to speak.

While the area seems to have faded from the EPA’s attention, Kimball thinks about the pollution he and his son must confront every day. “It pops into my head every time I go outside,” he said.

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Five decades ago, city planners noted that “smoke, noise, and fumes from heavy industries and railroad operations and truck traffic permeate the area” around the Collegeville Center. The same conditions exist today in North Birmingham, Ala.

Photo: Andi Rice for The Intercept

A Legacy of Activism

On a recent afternoon, a team of scientists and environmental activists met around the corner from the Collegeville Center in North Birmingham to hang air monitors that will gather independent evidence about what exactly residents are still being exposed to.

GASP, the local environmental justice organization spearheading the effort, already conducted one round of testing, in 2020, that found concentrations of naphthalene, a carcinogen produced in coal and petroleum processing, at up to 50 times the EPA’s cancer risk level. They also found concentrations of benzene, another known carcinogen, up to 29 times the EPA’s cancer risk level.

The group plans to use the data from air monitoring to continue pressing the EPA to place the 35th Avenue Superfund site on the National Priorities List, which would bring additional funds for testing and cleanup.

GASP’s attorney Colson Lewis said the group is motivated in large part by the children always playing outside at the public housing complexes oblivious to the risks they’re being exposed to. “It just makes you want to keep advocating for what’s best for everyone’s health,” she said, “especially the children who can’t do it for themselves.”

There’s a rich history of activism in the area. The Collegeville housing complex sits just down the block from the famed Bethel Baptist Church, where Rev. Fred Shuttlesworth, a co-founder of the Southern Christian Leadership Conference, was the longtime pastor.

There’s a plaque hanging on an overpass at the Collegeville Center commemorating the area as the cradle of the civil rights movement. The plaque is next to a drainage ditch, out of sight. Some advocates say it’s emblematic of how this community has been treated over the years and that more activism is needed.

Cammack’s grandfather followed in a long tradition of men before him who, despite the power of the community, faced continued obstacles. After he worked for years in a local quarry, his health began to fail. He was compensated, and the family used the money as a down payment on a house. While home ownership became a point of pride for the family, Cammack said, “he paid with his life.”

So she’s taking extra precautions to protect her daughter. Cammack takes her to play at a park farther from their apartment complex, but the smoke plumes and foul smell tend to migrate, and she often cuts the trips short.

“It’s alarming,” Cammack said. “You can see it and smell it, but it’s hard to know how it affects you.”

Local environmental activists continue to push for federal oversight through the Superfund program, which would bring more money to repair the community. And they’re optimistic that incoming leaders at the EPA and HUD will make oversight a priority.

How much of a priority remains to be seen. “Everything is a balancing act,” Goldfarb, the retired HUD official, said. With resources scarce and the federal deficit growing, he said, “The question is what are we going to spend money on?”

Will Craft contributed reporting and data analysis for this story.

Support for this project was provided by the University of Southern California’s Center for Health Journalism.

The post Thousands of U.S. Public Housing Residents Live in the Country’s Most Polluted Places appeared first on The Intercept.

In Wake of Capitol Riot, GOP Legislatures “Rebrand” Old Anti-BLM Protest Laws

Published by Anonymous (not verified) on Wed, 13/01/2021 - 8:14am in

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Justice, Politics

Within one day of last week’s attack on the Capitol, at least three states introduced legislation to criminalize protest. The bills, advanced by Republican lawmakers in Florida, Mississippi, and Indiana, do not represent new strategies designed specifically to prevent future right-wing insurrections. Rather, they draw from a set of policies that numerous state legislators introduced this summer in order to appear tough on protests against police brutality.

Florida’s and Mississippi’s bills in particular represent a new brand of anti-protest laws on steroids, creating penalties for a wide array of activities, from damaging monuments to obstructing traffic. The bills include measures that could encourage harsh law enforcement responses to protests as well as provisions meant to prevent local governments from reducing police funding.

The narrower Indiana bill would broaden the definition of rioting — which the Florida bill did as well — and would criminalize camping at the Indiana state Capitol. The Mississippi bill would also allow the state to strip unemployment benefits from anyone who pleads guilty to participating in disruptive protests.

“The concern is that the attack on the Capitol will be used to push the kind of legislation we’ve already seen, especially in response to this summer’s racial justice protests.”

Civil liberties advocates warn that the three bills are only the tip of the iceberg. “It’s important to think about these bills as not just responses to the attack on the Capitol,” said Elly Page, creator of the International Center for Not-for-Profit Law’s U.S. Protest Law Tracker. She started the database to monitor a wave of anti-protest bills that began around the time of President Donald Trump’s election, in the wake of the movement against the Dakota Access oil pipeline at Standing Rock, and widespread police brutality protests.

“The concern is that the attack on the Capitol will be used to push the kind of legislation we’ve already seen, especially in response to this summer’s racial justice protests,” Page said.

Amid nationwide actions against police brutality this past summer, a number of states introduced new legislation expanding penalties for rioting, unlawful assembly, or civil unrest. In Ohio, New York, and Michigan such bills were defeated — as was federal legislation that would have allowed the U.S. attorney general to withhold federal funding from local officials if they were deemed to have failed to take sufficient measures to deter or prosecute riot-related activity.

But Tennessee’s anti-protest bill passed, and a total of eight states still have legislation pending that would expand penalties for “rioting” or participating in certain types of protests.

Simultaneously, states have continued to advance so-called critical infrastructure bills, aimed at criminalizing protests against the fossil fuel industry. The “critical infrastructure” bills are promoted by the right-wing American Legislative Exchange Council, or ALEC, a membership group that links up industry groups and state legislators to produce model legislation that is often introduced nearly verbatim. Ohio’s governor signed its new critical infrastructure law on Monday, and four other states passed such laws in 2020. (ALEC denied that it had any role in the spate of post-January 6 anti-protest bills.)

Although past anti-protest bills have certainly included a range of new rules under one bill, Page said this approach of “throwing everything but the kitchen sink” at the issue of disruptive protests appears to be new. She pointed to Missouri and South Carolina, which both introduced wide-ranging anti-protest legislation in December, as additional examples.

Together, the “critical infrastructure” and other anti-protest laws constitute a renewed push to criminalize certain kinds of dissent.

Page underlined that new laws are unnecessary. “Some lawmakers will want to look like they’re doing something in response to what happened last week,” she said. “But police and prosecutors have more than enough tools to address what arose on the Capitol.”

Florida Governor Ron DeSantis speaks to the crowd before a Make America Great Again campaign rally in Tampa, Florida on October 29, 2020. (Photo by Ricardo ARDUENGO / AFP) (Photo by RICARDO ARDUENGO/AFP via Getty Images)

Florida Gov. Ron DeSantis speaks to the crowd before a Make America Great Again campaign rally in Tampa, Fla., on Oct. 29, 2020.

Photo: Ricardo Arduengo/AFP via Getty Images

Florida Revives BLM Bill

Last September, standing alongside more than a dozen Florida law enforcement officers at the Polk County Sheriff’s Office, Republican Gov. Ron DeSantis announced the “Combatting Violence, Disorder and Looting and Law Enforcement Protection Act,” a blueprint for the bill introduced in Tallahassee last week.

There was no doubt it was a response to the police brutality protests that had swept the nation after George Floyd was killed by Minneapolis police in May. “You know, recently in our country we’ve seen attacks on law enforcement, we’ve seen disorder and tumult in many cities across the country,” DeSantis said in September. “We need to do more in terms of having a strong legislative response, so that we do not always have to play whack-a-mole any time you have situations like this develop.”

DeSantis said the legislation would be a “focal point” in the next legislative session. And in November, he went further, drafting “anti-mob” legislation that would expand Florida’s “stand your ground” law, making it easier to shoot and kill with impunity people looting property. He had also tried to push state legislators to pass his proposal ahead of November elections, during a special organizational session not typically used for legislating. According to Florida Democratic State Rep. Anna Eskamani, several state senators had concerns with DeSantis’s earlier proposals affording impunity to people who attack protesters, and some of those pieces didn’t make it into the new bill.

It wasn’t until the day of the attack on the Capitol, however, that a version of the bill was finally introduced. By then, DeSantis’s rhetoric had changed. At a press conference last Thursday, DeSantis framed the measure as being aimed at protecting against incidents like the attacks at the Capitol. “I hope maybe now we’ll get even more support for my legislation because it’s something that needs to be done,” he told reporters.

The bill is raising concerns among rights activists. The American Civil Liberties Union of Florida strongly criticized DeSantis’s proposals and the current bill, condemning the governor for trying to “rebrand” his crackdown on protests against police brutality as concern for what transpired at the Capitol last week.

“He said that was his priority in direct response to the protests for racial justice that were happening across the state,” said Kara Gross, legislative director and senior policy counsel at the ACLU of Florida, referring to DeSantis’s proposals in the fall. “What he’s doing now is, he’s trying to rebrand it. And he’s trying to disingenuously say that, ‘Oh, we really need this,’ because of what happened in D.C.”

“We very well know that this was a response to the Black Lives Matter movement.”

“Gov. Ron DeSantis is mini-Trump. And he is so disingenuous in even speaking on what took place on January 6 because he is complicit to it,” said Eskamani, the state representative. “We very well know that this was a response to the Black Lives Matter movement.”

The latest version of Florida’s bill, which Republican State Rep. Danny Burgess introduced on Wednesday, raises certain charges from misdemeanors to felonies; creates new crimes including “mob intimidation”; seeks to protect Confederate monuments; usurps local control of policing by allowing state reviews of local decisions to reduce police funding; and waives sovereign immunity for municipalities, which would allow individuals to bring civil lawsuits against local authorities for not providing enough law enforcement protection.

The bill also blocks civil damages for people harmed as part of protest actions, for example if someone is injured by a car that drives into a demonstration. Under the bill, anyone arrested at a protest would be detained until their first appearance in court — a measure typically reserved for cases where defendants pose an immediate threat to public safety. Burgess did not respond to requests for comment.

“Any insinuation by the governor or legislative leaders that this bill is necessary to keep the public safe or prevent property damage is absurd,” said Gross, of the ACLU Florida. “The single intent of this bill is to silence and criminalize Black protesters and their allies who are exercising their First Amendment rights.”

NASHVILLE, INDIANA, UNITED STATES - 2020/06/20: Members of the Indiana National Guard patrol the streets during the demonstration.<br />
Protest in solidarity with Black Lives Matter for Racial Justice in downtown Nashville. (Photo by Jeremy Hogan/SOPA Images/LightRocket via Getty Images)

Members of the Indiana National Guard patrol the streets during a demonstration in solidarity with Black Lives Matter in downtown Nashville, Ind., on June, 20, 2020.

Photo: Jeremy Hogan/SOPA Images/LightRocket via Gett

Draconian Bills

Mississippi politicians have said little so far about the sprawling anti-protest bill introduced the day after Trump supporters stormed the Capitol, but its text offers some clues about the provenance: The Mississippi bill bears the exact same name as the September version of the Florida bill pushed by DeSantis and contains much of the same language.

As in Florida, the Mississippi bill creates severe penalties for a remarkable array of activities. If the bill passed, a group of six or more people that threatens property or “disturbs any person in the enjoyment of a legal right” could face up to three years’ imprisonment and a $5,000 fine — essentially criminalizing any protest that happens to annoy a bystander. If the person traveled from another state to participate, the minimum penalty would be three years’ imprisonment. The bill would also create new jail sentences and fines for blocking traffic, throwing things, pulling down monuments, and causing emotional distress to a protest bystander. Anyone who pleads guilty to any of the new crimes would no longer be eligible for unemployment benefits; any government employee who pleads guilty would lose their job; and anyone aiding a person who commits the new crimes could also face charges.

The bill also serves to incentivize harsh police crackdowns by encouraging victims of crimes perpetrated during a protest to recover damages from local governments whose policing was “negligent” and preventing those who unlawfully participate in protests from suing local agencies such as police. It also includes a provision barring cities and counties from reducing police department budgets except in proportion to reduced revenue. And it expands the state’s “stand your ground” law to allow business owners to kill someone in defense of their company property if there’s rioting nearby.

The Indiana bill, also introduced one day after the insurrection at the Capitol, would broaden the definition of rioting and criminalize camping at the Indiana state Capitol complex. Protesters held nine consecutive days of sit-ins at the state Capitol in June. Under the new bill, a gathering of three or more people who simply obstruct law enforcement or any other government function could be imprisoned for a minimum of 30 days. The bill would also create a minimum 30-day sentence for anyone convicted of battery against a law enforcement officer, firefighter, or emergency medical service provider.

A second Indiana bill, introduced days before the Capitol unrest, contains a wider array of protest-related penalties, including denying state benefits to people convicted of rioting. (State legislators pushing the Mississippi and Indiana bills did not immediately return requests for comment.)

The idea that states are pushing these measures now to crack down on criminal activity is a farce, said Eskamani: “It’s all these distractions and an attempted effort to basically elongate these controversies — because it serves the Republican Party.”

The post In Wake of Capitol Riot, GOP Legislatures “Rebrand” Old Anti-BLM Protest Laws appeared first on The Intercept.

Dispatches From Trump's Killing Spree

Published by Anonymous (not verified) on Wed, 13/01/2021 - 4:38am in

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Justice

When Trump’s Department of Justice restarted federal executions for the first time in 17 years, The Intercept’s Liliana Segura began traveling to the site of the execution chamber in Terre Haute, Indiana. These are her dispatches from the death machine.

The post Dispatches From Trump’s Killing Spree appeared first on The Intercept.

Trump’s Execution Spree Is Not About Him. It’s About Us.

Published by Anonymous (not verified) on Mon, 11/01/2021 - 12:15am in

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Justice

One week before her client was scheduled to die in the federal execution chamber, capital defense attorney Kelley Henry shared a photograph with reporters assembled on a Zoom call. It showed an old trailer in a grassy field in Osage, Oklahoma. This was the spot where her client Lisa Montgomery was repeatedly raped as a child.

Henry had taken the photograph herself. It was an emblem of Montgomery’s harrowing life story. “We’ve described it as Lisa experiencing life like a horror movie growing up,” Henry said. “But what happened to Lisa was worse than a horror movie. Worse than anything you can imagine.”

Montgomery was convicted in 2007 for murdering a pregnant Kansas woman named Bobbie Jo Stinnett. She strangled her, then cut her open to abduct her unborn baby. Arrested in 2005, Montgomery was tried on federal charges and sentenced to die.

Despite her gruesome actions, there was an outpouring of support for Montgomery after her execution date was announced last fall. Media outlets detailed her history of mental illness as well as the extreme physical and psychological abuse she endured growing up, raped by her stepfather and trafficked by her mother. They described the shocking incompetence of her trial attorneys, who failed her at every turn. Today, more than 40 current and former prosecutors support Montgomery’s clemency petition, including some who have prosecuted women for similar crimes. “We know from first-hand experience that these crimes are inevitably the product of serious mental illness,” two of them wrote. “Women who commit such crimes also are likely to have been victimized themselves.”

Despite all this support, there is good reason to doubt that Montgomery’s life will be spared. Just before the press conference began on January 5, Henry and her colleagues received word that they had lost their latest appeal. Although they have called upon the president to be a “hero” by sparing Montgomery’s life, Donald Trump has thus far shown no compassion for those scheduled to die.

In this Aug. 28, 2020, file photo, a no trespassing sign is displayed outside the federal prison complex in Terre Haute, Ind. A newly released report says the U.S. government for the first time has carried out more civil executions in a year than all states combined as President Donald Trump oversaw a resumption of federal executions after a 17-year pause. (AP Photo/Michael Conroy, File)

A sign is displayed outside the federal prison complex in Terre Haute, Ind., on Aug. 28, 2020.

Photo: Michael Conroy/AP

If the Department of Justice gets its way, Montgomery will be killed by lethal injection on January 12. Two days later, Corey Johnson is set to die, followed the next day by Dustin Higgs. Both Johnson and Higgs contracted Covid-19 in December — part of a severe outbreak in the Special Confinement Unit at the federal penitentiary in Terre Haute, Indiana. As the press conference about Montgomery wrapped up, lawyers for Johnson and Higgs were in an evidentiary hearing with a federal judge arguing that lung damage sustained by their clients heightened the risk that they would suffer a tortuous death.

If the three executions go through, Trump will have executed 13 people in the federal death chamber since July. It’s an astonishing body count, made even more unprecedented by the coronavirus pandemic, which has sickened countless people connected to the executions. The pandemic has put defense attorneys in an especially wretched position. Lawyers have been forced to choose between protecting their health and fulfilling their obligations to their clients. Henry and her co-counsel chose the latter last fall, traveling to see Montgomery after her date was announced, only to later test positive for Covid-19. Over protests from government prosecutors, a court granted a brief delay to allow them to recover in order to complete the clemency petition. But a new execution date was promptly set.

With Americans still reeling from the insurrection at the Capitol — and fearful of more violence as Trump’s term comes to an end — the final federal executions are likely absent from most people’s minds. A poll of registered voters found that, while there is significant opposition to the resumption of federal executions after a 17-year pause, 40 percent had heard “nothing at all” about the 10 executions carried out last year. For many of those who have tuned in, the push to kill so many people during a global pandemic is an emblem of Trumpism, the kind of cruelty and incompetence that has defined his presidency.

But it would be a mistake to write off the killing spree as yet another grim chapter of the Trump era. The federal executions have been possible thanks to a system that long predates Trump. The death machinery in Terre Haute — and the legal infrastructure that sustains it — is a bipartisan creation, animated by prosecutors and judges whose power has been derived from Democratic and Republican administrations alike. And while the killing season in Terre Haute may look like an aberration, it is part of a violent tradition that Americans have accepted for years.

With President-elect Joe Biden vowing to end the federal death penalty, the killing spree in Terre Haute will soon be over. But even if federal executions never resume, the death penalty remains active in the rest of the country. Lawyers like Henry, who represents people on Tennessee’s death row, will still have to fight for the lives of their clients this year, even if Montgomery is spared. If there is to be an honest reckoning over the excesses of this era, it must start by acknowledging that our worst cruelties did not begin or end with Trump — and that the systems that enabled him remain in place. The question is whether Americans are willing to do anything about it.

FILE - In this Oct. 9, 2014, file photo, the gurney stands in the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla. An autopsy on an inmate put to death by a lethal injection of pentobarbital last month as the Trump administration resumed federal executions shows he suffered "extreme pain" before he died, according to recent court fillings by lawyers trying to halt the execution of their death-row client next week. (AP Photo/Sue Ogrocki, File)

The gurney stands in the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla., on Oct. 9, 2014.

Photo: Sue Ogrocki/AP

A History of Violence

In December, ProPublica published a story that provided a glimpse into Trump’s execution spree from inside the Justice Department. In their rush to kill, it explained, Attorney General William Barr and several enablers “trampled over an array of barriers, both legal and practical.” There were “middle-of-the-night killings,” a man “strapped to the gurney while lawyers worked to remove a court order,” and another who was executed despite a pending appeal.

The story laid out how the administration “bought drugs from a secret pharmacy that failed a quality test” and paid experts with questionable credentials for reports backing the government’s lethal injection protocol. Especially chilling to many, the U.S. Bureau of Prisons solicited private contractors to carry out the executions and paid them in cash.

The picture was certainly galling. It came on the heels of another revelation, that Trump planned to change federal rules to allow for older execution methods like the firing squad and electric chair. Yet for those who have seen how the death penalty operates for years, all of this was actually fairly familiar. In Missouri alone, not only did a man spend three hours on the gurney in 2005 before being killed in the dead of night, but several people have been executed over the last decade while their appeals were still pending. And for all the revulsion over Trump’s new execution rule, states have been seeking to revive old execution methods for years. In Tennessee, five of the last seven executions carried out since 2018 took place in the electric chair.

For more than a decade, death penalty states have gone to desperate, sometimes illegal lengths to carry out executions by lethal injection.

The maneuvering to find drugs for lethal injection — and the secrecy around it — was especially familiar. For more than a decade, death penalty states have gone to desperate, sometimes illegal lengths to carry out executions by lethal injection. Long before the Trump administration sought out the pentobarbital used to execute people in Terre Haute, states around the country had come to rely on sketchy suppliers. After a series of botched executions in 2010, death penalty lawyers traced the origins of one of the drugs to a British pharmaceutical wholesaler based in the back of a driving school. In 2015, BuzzFeed News tracked illegally imported lethal injection drugs to an office building in India. As states turned to largely unregulated compounding pharmacies on U.S. soil, providers of lethal injection drugs were exposed as having alarming track records. The supplier for Texas forged quality control documents. In Missouri, prison officials paid for drugs in cash from a pharmacy labeled “high risk” by the Food and Drug Administration.

In the meantime, the U.S. Supreme Court made it virtually impossible to challenge lethal injection even as states adopted hasty new formulas, swapping out substances with little notion as to whether they would work as intended. In 2015, the justices upheld a three-drug protocol using midazolam despite warnings from anesthesiologists that the drug, a sedative, did not have the properties needed to render a person insensate for the purpose of execution. The ruling also upheld the requirement that a condemned person who wished to challenge such a protocol had to propose a “known and available alternative” way to die.

In 2017, Arkansas Gov. Asa Hutchinson decided that the state needed to use up its supply of midazolam before it expired. Prosecutors and prison officials worked overtime to execute eight people in 11 days, with some scheduled to die on the same night. Litigation over the state’s protocol raised red flags. In a hearing prior to the first executions, Wendy Kelly, then head of the Arkansas Department of Corrections, testified that a different drug in the state’s three-drug protocol had been “donated” to her after she explained the payment process to the anonymous supplier. According to the Arkansas Times, “the supplier was worried about his or her identity being revealed to the public through the payment process.”

Only four of the eight executions in Arkansas went through in the end. But the last one was especially disturbing. Kenneth Williams coughed, convulsed, and lurched on the gurney, according to media witnesses, whose accounts were immediately dismissed by government officials. Although the litigation over lethal injection continued after the executions ended, there has been no reckoning over Williams’s disturbing death. One of the officials most responsible for carrying out the state’s execution spree, Arkansas Attorney General Leslie Rutledge, announced a run for governor last year.

There are other parallels between the killing spree in Arkansas and the executions in Terre Haute. As with those executed in the federal death chamber last year, lawyers for the condemned in Arkansas scrambled to file legal challenges and clemency petitions for their clients. They contained familiar red flags, from mental illness to childhood trauma to ineffective assistance at trial.

In March 2017, I attended the clemency hearing for Marcel Williams, who had raped and killed a young woman in Little Rock in 1994. Although his crimes were unquestionably horrific, they were also partly the product of a life warped by violence and sexual abuse. One clinical psychologist revealed that by the time Williams was 12, his mother was regularly selling his body in exchange for food stamps.

Attorneys for Williams failed to present such evidence during his sentencing trial. Before Williams was executed on April 24, 2017 — strapped to the gurney for more than an hour as the final litigation played out — one of the defense attorneys who represented him at trial told me that it was the first capital murder case he’d ever tried. His failure to present mitigating evidence was especially catastrophic. “I can’t say we even looked for it,” he said.

Demonstrators protest federal executions of death row inmates, in front of the US Justice Department in Washington, DC, on December 10, 2020. - US federal authorities have scheduled five executions starting on December 10 through January 15, 2021. Four of the five are Black men; the fifth, Lisa Montgomery, would be the first woman to be executed by the federal government in nearly 70 years. (Photo by Nicholas Kamm / AFP) (Photo by NICHOLAS KAMM/AFP via Getty Images)

Demonstrators protest federal executions in front of the Justice Department in Washington, D.C., on Dec. 10, 2020.

Photo: Nicholas Kamm/AFP /Getty Images

The Right to Take a Life

In the next day or two, if they have not already, the Bureau of Prisons will hand Lisa Montgomery over to the U.S. Marshals, who will fly her to Terre Haute for her execution. Her lawyers will not be told in advance. Nor is it clear how much of an understanding Montgomery will have of her fate. Attorneys have said she has decompensated in recent months. On Friday, her legal team filed a petition for a writ of habeas corpus in the Southern District of Indiana arguing that she is not competent to be executed due to “co-morbid conditions of serious mental illness, neurological impairment, and complex trauma.”

Although the federal government has not executed a woman since the 1950s, such executions are not quite as rare as they might seem. Sixteen women have been killed in state death chambers since the “modern” death penalty era began in 1976. Although many of the executions raised controversy, the politicians most responsible have suffered few consequences, even when their behavior has been callous and cruel. Before he became an ex-president looked upon with nostalgia by many Trump critics, George W. Bush mocked Karla Faye Tucker following her execution in 1998.

Those who carry out executions do not necessarily remain anonymous forever. Years after Tucker’s execution, documentary filmmaker Werner Herzog interviewed the veteran captain of the execution team in Texas responsible for killing her. Her execution had been no different from any of the others, the man said, yet he found himself shaking afterward.

“And then I started actually visualizing the other inmates,” he said. “I could actually see them in the holding cell again. One right after another.” He realized he could not carry out executions anymore. “From that point on, I’ve had a different outlook in life. … After Karla Faye and after all this … no sir. Nobody has the right to take another life. I don’t care if it’s the law. And it’s so easy to change the law.”

Correction: Jan. 10, 2021, 2:20 p.m. ET
A previous version of this article incorrectly stated that only 13 percent of registered voters were aware that federal executions had resumed, according to a December poll. It has been updated to reflect that 40 percent of registered voters had heard “nothing at all” about the executions.

The post Trump’s Execution Spree Is Not About Him. It’s About Us. appeared first on The Intercept.

New York’s Prison Transfers Increased Covid-19 Risk for Sick, Elderly Men

Published by Anonymous (not verified) on Sat, 09/01/2021 - 12:07am in

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Justice

Months after New York had become a global epicenter of the Covid-19 pandemic, state officials began quietly moving dozens of elderly men with underlying health conditions from prisons across the state to a facility close to the Canadian border.

The transfers, which began in June 2020, after the virus had spread widely and caused several deaths among the state’s incarcerated population and prison staff, were ostensibly intended to protect the most vulnerable from Covid-19. But defying both public health recommendations and common sense, prison officials moved the men from different facilities, including some with large outbreaks, without first testing them, transporting them on crowded and poorly ventilated buses. They then mixed them at the Adirondack Correctional Facility in Ray Brook, New York, without quarantining them. Since then, officials have tested the men only sporadically, even after some were exposed to the virus inside the prison, and have taken minimal steps to promote hygiene and social distancing. When a man incarcerated at the facility was discovered to have contracted the virus, prison officials ordered the guards who had come in contact with him to quarantine at home for two weeks. But they took no measures to test and isolate the incarcerated people with whom he had also been in close proximity.

The moves to Adirondack — which state officials did not announce publicly beyond a brief mention on the website of the Department of Corrections and Community Supervision, or DOCCS — were detailed in a class action lawsuit filed on Friday on behalf of the nearly 100 men who were transferred to the prison, all of whom are over the age of 60 and have underlying health conditions. The lawsuit further includes claims on behalf of a subset of Adirondack’s population who also have a disability recognized under the Americans with Disabilities Act.

In the complaint, attorneys with the Legal Aid Society and the civil rights firm Relman Colfax accuse state officials of effectively creating “a prison nursing home” without adopting the precautions this approach would require, and of “creating a heightened risk of spreading infection and undermining the ability to treat this particularly vulnerable group.” In doing so, they claimed, the state violated constitutional protections against cruel and unusual punishment and discrimination as well as disability laws. The lawsuit calls for the state to cease all future transfers to Adirondack until officials have addressed conditions there and brought the prison and transfer protocols in compliance. But attorneys for the men incarcerated at Adirondack also argue that releasing them is the single safest solution.

“By design, incarcerated people transferred to Adirondack are old, infirm, and unthreatening,” the complaint reads. “These are precisely the people that DOCCS should prioritize releasing in light of the COVID-19 crisis.”

The lawsuit, which accuses the state of “deliberate indifference” to the safety of the men incarcerated at Adirondack, comes as New York is in the grips of a second wave of the pandemic, which has once again spread widely through the state’s prisons, with three new deaths reported just on Wednesday. At least 27 incarcerated people have died so far in the state after contracting the virus in prison, according to official figures compiled by Legal Aid. Four parolees and six prison staff members have also died of the virus. Some 3,459 people incarcerated in the state have tested positive so far, though New York maintains a lower infection rate per capita than many other states.

The lawsuit also comes as advocates are lobbying legislators to reform the state’s parole system and as pressure mounts on Gov. Andrew Cuomo to release vulnerable people through clemency or other means. Dozens of court claims have been brought on behalf of individuals and groups of people incarcerated in the state seeking their release — with mixed success. Ten people were released on medical parole since March, and Cuomo has recently granted clemency to 21 more. As of Thursday, 3,552 people were released early from New York prisons because of the pandemic, though advocates say that is far too little.

“The conditions at Adirondack are totally inadequate to protect people.”

“Essentially, the state started transferring people halfway through the ongoing pandemic rather than releasing them,” Stefen Short, a supervising attorney at Legal Aid’s Prisoners’ Rights Project who is representing the men incarcerated at Adirondack, told The Intercept. “The department is engaging in very unsafe practices in transferring people to Adirondack, including not quarantining people upon arrival, not testing people before they’re transferred, shunting people directly into general population without any type of measures to ensure they don’t have Covid or have not been in contact with anyone who has Covid. And the conditions at Adirondack are totally inadequate to protect people.”

Thomas Mailey, a spokesperson for DOCCS, wrote in an email to The Intercept that there are currently 93 men incarcerated at Adirondack, none of whom have recently tested positive for Covid-19. He added that the transfers were intended to reduce density in other facilities with a high number of positive cases. Buses moving incarcerated people between facilities travel at half capacity, he said, and individuals traveling are screened and receive temperature checks.

“Throughout the COVID-19 public health emergency, the Department of Corrections and Community Supervision has worked in consultation with the NYS Department of Health (DOH) and followed facts and science to protect staff and the incarcerated population,” he wrote. “The entire incarcerated population has been tested for COVID-19 and an asymptomatic testing program is currently underway.”

Mailey did not specify when the prison’s population was tested or whether it was tested more than once. Cuomo’s office declined to comment on the record.

A Death Sentence

In court filings, the men transferred to Adirondack described communal spaces such as dorms, mess halls, and bathrooms where social distancing was impossible. They denounced a dearth of hand sanitizer and masks months into the pandemic. And they reported weekslong wait times to see a doctor and guards not wearing masks or wearing them around their chins.

Jose Leon, a 62-year-old with a long list of medical conditions, including hypertension, colitis, and a history of heart attacks, has become so scared of contracting the virus at the prison that he has stopped going to the mess hall for meals, his sister, Jeanette Velazquez, told The Intercept. Because of a policy at Adirondack that prohibits residents from eating food from the mess hall in their dorms, that means that Leon is only able to eat food he has purchased from the commissary. (At other prisons in the state, eating in cells is allowed so that people are not forced to choose between buying food and risking exposure.) Velazquez also said that Leon, who used to call her a couple times a day, is calling her far less because he is trying to avoid the prison’s communal areas. Mailey told The Intercept that staff are required to wear masks and that the DOCCS Office of Special Investigations has been performing compliance checks. He added that individuals eating in the prison’s mess hall are seated three seats apart.

“He’s very nervous, and he’s trying to stay away from people, places, and things,” said Velazquez. “He doesn’t go to the infirmary. He’s afraid to go anywhere. He’s just been isolated from everything. He’s skipping meals, he’s staying away, he doesn’t really call me as much as he would want to, to stay away from the phone.”

“It’s like giving them a death sentence.”

Leon, who has spent the last 16 years in prison, was denied parole in 2019. Earlier in the pandemic, Velazquez had hoped he would be among the elderly people with health conditions who officials said they would consider for early release. Instead, he was moved to Adirondack, where prison staff handed him two paper masks that he has been rewashing for months. According to court filings, he was recently denied a colonoscopy necessary to monitor his colitis because the prison had not conducted sufficiently recent Covid-19 testing for the hospital to admit him for the procedure.

“It’s unnecessary, what’s the purpose of that?” Velazquez said, referring to the continued incarceration of her brother and other elderly, sick people who pose no threat to public safety. “Why are they doing it? It’s like giving them a death sentence right now, with what’s going on.”

Jose Hamza Saldaña, director of the Release Aging People in Prison Campaign, or RAPP, a group of formerly incarcerated advocates and their families that is also a party to the lawsuit, echoed that sentiment.

“Everybody agrees that these men and women are the least likely to ever commit another crime. For the most part, they’ve been mentors,” said Saldaña, who was released in 2018 after serving 38 years in New York prisons. “It’s really hard for me to really imagine what could stop this governor from releasing these men and women, who will probably be a benefit to society as they enter their home communities, as opposed to let them die.”

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Illustration: Cam Floyd for The Intercept

Deliberate Indifference

In late spring, DOCCS published a “Covid-19 Reopening Plan” fact sheet on its website. In a bullet point, the department indicated that it planned to move individuals over 60 and with medical conditions to Adirondack, a facility that until that point had housed incarcerated minors. In an updated version of the document, DOCCS explained the move by noting that “the North Country has an extremely low infection rate,” a reality that has since changed. “There was one bullet point in this five-page document,” said David George, who also works with RAPP and was monitoring the site for any update to share with incarcerated people and their families. “There was no public announcement, there was no press release.”

Indeed, the lack of information from prison officials has been a consistent issue throughout the pandemic, attorneys say. “We’re begging the department for information about what it’s doing and what it intends to do to protect people from Covid,” said Short. “And the department won’t tell us anything.”

The attorneys say that DOCCS declined to answer their questions about the move to Adirondack, including whether the decision had been informed by public health experts. “We specifically asked, ‘Have you consulted with experts on this? Who has been informing you throughout the process on whether or not there’s a way to do these transfers safely, whether or not there’s a way to group vulnerable people together safely?’” said Short. “And they won’t answer that either.”

The complaint filed on Friday argues that department officials ignored the most basic public health guidelines, even as the high risk of spreading the virus by transferring and mixing people without screening and testing them was well known at the time of the transfer.

As The Intercept has reported before, prisons and jails, where social distancing is virtually impossible, quickly became epicenters of the pandemic. According to the complaint, the virus attack rate, or the proportion of those exposed to the virus who ultimately contract it, is as high as 80 percent in prison, as opposed to 20 to 30 percent in the general population. And the virus is deadlier inside prisons than it is outside them, making the death rate for those incarcerated three times higher than for the general population.

Yet the pandemic has only exacerbated what was already a public health crisis in U.S. prisons, where a disproportionate number of people are elderly and suffer from health conditions like hypertension, diabetes, and asthma. According to the complaint, the physiological age of an incarcerated person is estimated to be 10 to 15 years more than their actual age, and chronic failures in prisons’ medical care systems have long gone unaddressed. Adirondack is more than two hours away from the closest hospital with the capacity to accept people from prison, the lawsuit claims, and two small local hospitals that don’t have the required security features would quickly be overwhelmed in the event of an outbreak at the prison.

Attorneys argued that officials ignored guidelines issued to correctional facilities by the Centers for Disease Control and Prevention and warnings by dozens of experts calling on state officials to release incarcerated people to “save lives.” And they said that prison officials moved people to Adirondack who had come from facilities with large outbreaks underway. Leon, for instance, was transferred over the summer from Otisville Correctional Facility, where almost 10 percent of the prison’s population had tested positive for the virus by the end of July. He was not tested before transfer. Many others were taken to Adirondack from Fishkill Correctional Facility, where five people had died of the virus by July. The hourslong transfers took place on crowded and poorly ventilated buses. During one such trip from Fishkill, a man started coughing and exhibiting flu-like symptoms, but while he was taken off the bus, none of the people he had been traveling with were tested or quarantined once they reached Adirondack, according to the lawsuit.

The men incarcerated at Adirondack are believed to have last been tested between September 30 and October 1, according to the lawsuit. When a man did test positive on that occasion, he was isolated, but none of the men he had been mingling with in his housing unit were screened or tested after he tested positive. And while three staff members who had been in close proximity with him during an hourlong grievance hearing in a room with no windows were ordered to quarantine at home for two weeks, two other incarcerated men who were also there were neither tested again nor isolated after the exposure.

“There was absolutely no effort to stop the spread within the facility,” said Rebecca Livengood, an attorney at Relman Colfax who is representing the men incarcerated at Adirondack. “In the event of an outbreak, they have no processes in place that would contain or mitigate the spread at all.”

Political Will

Before the pandemic, Adirondack housed about 13 incarcerated youths, and there were plans to turn the 500-bed prison into a drug treatment facility. As about 17 prisons across the state have closed over the last decade, Cuomo has come under pressure from representatives of parts of the state that rely heavily on prisons for jobs. Advocates are questioning whether the transfer of elderly people to Adirondack was part of an effort to keep the prison filled — even though Cuomo has long maintained that “incarceration is not an employment program.”

“These are economic anchor institutions in economically depressed areas of the state,” said Short, noting that it’s common for the state to repurpose the most remote facilities multiple times in an effort to keep them utilized. “It certainly doesn’t surprise us that the department is trying to keep those economic anchor institutions functioning.”

It is not clear how long the people who were transferred to Adirondack will remain there, but attorneys argue that the men moved to the prison have lost access to programs and to adequate medical care, and that in many cases they have been moved farther away from their families. They and their loved ones have received little information throughout the process, a reality that attorneys say is indicative of the state’s haphazard approach to the handling of the pandemic in prisons. Even months into the crisis, testing in New York prisons has lagged, as has information about prison outbreaks.

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“When you look at how Cuomo has handled Covid statewide, for folks who aren’t incarcerated, he has really modeled himself as a leader in taking a testing-based, science-based approach, and being very aggressive,” said Livengood. “That response is really lacking in prisons.”

In the absence of bolder measures from the governor, advocates are lobbying for a number of prison reform bills currently before state legislators, including the Elder Parole bill and the Fair and Timely Parole Act, which would give elderly incarcerated New Yorkers a chance at release and directly impact many of the men currently at Adirondack.

“This is really a matter of political will,” said RAPP’s George. “Time and time again, Governor Cuomo and the state prison system have just failed, flat out, incarcerated people, their families, and their communities. And as a result, lawmakers in New York really need to step up.”

The post New York’s Prison Transfers Increased Covid-19 Risk for Sick, Elderly Men appeared first on The Intercept.

To See Police Priorities, Contrast Capitol Mob With J20 and Black Lives Matter Protests

Published by Anonymous (not verified) on Fri, 08/01/2021 - 8:09am in

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Justice, Politics

A Trump supporter confronts police and security forces at the US Capitol in Washington, DC, on January 6, 2021. - Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by ANDREW CABALLERO-REYNOLDS / AFP) (Photo by ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)

A police officer and Trump supporter, right, stand at the U.S. Capitol in Washington, D.C., on Jan. 6, 2021.

Photo: Andrew Caballero-Reynolds/AFP via Getty Images

Four years ago, I joined hundreds of protesters in Washington, D.C., to march in confrontational and furious opposition to a newly elected president. This was not the vast, largely placid Women’s March, which led to zero arrests, but the explicitly anti-fascist black bloc protesting on President Donald Trump’s Inauguration Day, January 20. In the context of the fast-moving march, as the crowd snaked through northwest D.C, a number of chain stores and bank windows were smashed. Tight flanks of militarized riot police moved in swiftly with batons and pepper spray. Within an hour of the march’s first steps, almost half of the participants — over 200 people — were trapped on a freezing corner behind heavy police lines. These J20 protesters would face bogus riot charges, which did not stand up in court but carried potential decades in prison. This is what state repression looks like.

In early June last year, as powerful anti-racist protests swept through the country in the wake of George Floyd’s killing, police in D.C. arrested 289 people in just one night — and 736 people over a week. Riot cops and National Guardsmen used lashings of tear gas and rubber bullets to clear protesters from a plaza where Trump had planned a cynical photo op in front of St John’s Church. This, too, exemplified repression.

This is what it looks like when the police have no interest in repressing a movement.

Meanwhile, four hours after armed Trumpians besieged the home of the U.S. government, only 14 arrests had been made by the Capitol Hill police. Footage showed officers assisting the right-wing rioters as they left the building. Later in the night, 30 more arrests were made for violations of a 6 p.m. curfew imposed by the city. Publicized official tallies recorded 52 arrests in total.

This is what it looks like when the police have no interest in repressing a movement. Given the essentially racist nature of U.S. policing, no one should be surprised that even extremely militant anti-authoritarian activity perpetrated for a white supremacist cause is not deemed a target of U.S. law enforcement’s vast and violent repressive capacities.

After hundreds of Trump supporters stormed the U.S. Capitol on Wednesday to disrupt the certification of Joe Biden’s victory, social media was flooded with commentary on the relatively lax, if not outright enabling, response from D.C. police. The far-right mob had descended on D.C. in response to Trump’s call for a “wild” protest. His white supremacist base had been explicit online about plans to converge as an armed and insurrectionary force. As I noted just the day prior, violence was all but inevitable. Yet the far-right protesters were met with a thin and scattered showing of police.

“Few of the cops are in riot gear, they don’t have a line completely set up, the barricades don’t cover the entirety of the steps,” Legba Carrefour, a D.C.-based longtime anti-fascist organizer — and a personal friend — posted on Facebook while observing the events prior to when the Capitol was breached.

One woman, a Trump fanatic and conspiracy theorist, was shot by a police officer inside the Capitol yesterday, according to official releases, and three other people died from “medical emergencies.” Numerous commentators have rightly stressed that had any other demographic of protesters attempted to storm the Capitol in a similar manner, they would have been slaughtered en masse. The brutal repression faced by Black protesters last summer makes this clear enough, but even everyday occurrences around the Capitol have proved deadly: In 2013, Miriam Carey, a 34-year-old Black woman was shot and killed after merely making a U-turn in her car at a checkpoint on Capitol Hill grounds.

The law enforcement response to Wednesday’s white riot was representative of the bent of U.S. policing exacerbated and emboldened under Trump.

It would be false to claim that the majority of Capitol Police officers, as individuals, invited the armed and chaotic crowds to storm the building. The point is more structural: The fact that police presence was so small for an event so laden with violent potential tells us everything we need to know about the ideological commitments of the institution of U.S. policing. A Capitol Police statement said that its forces had been stretched too thin, but even this speaks volumes about the lack of preparedness. On Inauguration Day 2017, for instance, police committed a full battalion of riot cops just to the 500 protesters marching with J20.

As a point of statistical fact — which even federal law enforcement registers — far-right racists are by far the deadliest extremist threat in this country. Yet the apparatus of “law and order” has made clear through its enforcement, again and again, that it does not perceive these groups as a threat.

Even the most fanatical right-wing extremists do not pose an existential threat to the state, even when storming statehouses.

Insofar as the raison d’être of policing, like the raison d’état of the United States, is the maintenance and protection of whiteness and property, even the most fanatical right-wing extremists do not pose an existential threat to the state, even when storming statehouses.

Many rightfully outraged comments on the double standard evinced by the police on Wednesday emphasized the mistreatment of peaceful Black protesters compared to the armed, destructive Trump supporters. But what the police have long, and once again, made clear is that whether a movement falls under the state’s repressive sights has little to do with the activists’ tactics.

Unarmed Black people are consistently treated as an a priori threat. An armed cop can shoot an unarmed Black child and call it “self-defense,” and the entire judicial system will nod in agreement. Yet armed white supremacists gathering in their thousands with the stated aim of attacking government buildings and officials are met with scant police resistance.

The distinction is key. When liberals decry more militant leftists and anti-fascists for a willingness to damage property — as in the J20 case and during last summer’s uprisings — they claim that it invites heavy policing of social and racial justice activism. The law enforcement treatment of far-right rioters, though, shows how little tactics have to do with whether the state commits to crushing a movement. In turn, it should be the violent white supremacist motivations of the Trumpian diehards that we oppose, not the breaking of Capitol building glass.

The point is that we should pay attention when U.S. policing makes its priorities unambiguous: when it manifests as an occupying military force and when it does not.

The point is that we should pay attention when U.S. policing makes its priorities unambiguous: when it manifests as an occupying military force and when it does not. (Though Black liberation fighters last summer made clear that overwhelming the police, even when faced with far greater repression, is indeed still possible).

There’s little doubt that there will be further arrests of neo-Nazis and assorted conspiracy theorists caught on film rampaging through Capitol Hill; the FBI has stated it seeks, post hoc, to identify the instigators. It could also be argued, at a stretch, that given the failed prosecution of the J20 defendants, D.C. police have shifted tactics away from mass arrests — but the response to the summer’s Black Lives Matter uprisings made clear that a willingness persists to grab protesters in great numbers on a given occasion.

Participants in Wednesday’s insurrection may well face grave criminal punishments; the government, if not the current president, is invested in the performance of such justice. There will be arrests, charges, and trials — lest the hypocrisy cause more public backlash than it’s worth. The difference here lies in the lack of willingness or desire on the part of law enforcement to repress far-right, white supremacist violence. That is the nature of state repression, because that is the nature of the United States.

The post To See Police Priorities, Contrast Capitol Mob With J20 and Black Lives Matter Protests appeared first on The Intercept.

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