Solitary Confinement

There are about 75,000 inmates in solitary confinement at the state and federal level combined in the United States, many for more than 10 years or even 20 years straight.

Cutting Off Methadone For Incarcerated Individuals Is Counterproductive

One of the main ways to end a destructive addiction to opium class drugs like heroin is to get methadone treatment, which prevents withdrawal but doesn't provide the same high.  But, the predominant policy in the American criminal justice system is to immediately cut off methadone treatment for people who are receiving it, or to do so in a quick phase out.

A new study in Rhode Island confirms that this policy is a bad one.  Cutting someone off from methadone while incarcerated dramatically reduces the chances that they'll keep trying to quit when they get out.  It also greatly increases the chance that they'll suffer a heroin overdose when they return to using a drug they've lost tolerance to at the doses they used to use.  Reduced post-incarceration ER costs alone more than outweigh the cost of providing methadone to inmates.

Methadone treatment is also highly effective, reducing the death rates of people in treatment relative to those who remain addicted by 70%.

Also, the knowledge that methadone treatment (which is harder to withdraw from than heroin use itself) will be withdrawn if you are incarcerated, reduces the number of people who try to get off heroin using the treatment.

In addition to all of this, the painful withdrawal symptoms associated with stopping methadone treatment are themselves a form of punishment often inflicted on people incarcerated while awaiting trial, and a form of coercion to force inappropriate guilty pleas for criminal defendants receiving methadone treatment (who are, of course, the ones who are at least trying to fix themselves).

The policy of withdrawing methadone treatment immediately, or phasing it out, for incarcerated individuals is wrong in pretty much every respect and should be reversed immediately.

U.S. Sentencing Laws Unusual

•The United States is among only 20% of countries around the world having life without parole (LWOP) sentences. LWOP sentences can never be reviewed and condemn the convict to die in prison.

•The United States allows for LWOP sentences for a single, non-violent offense such as drug possession, whereas it is often restricted to multiple, violent crimes in other countries.

•The United States is one of only nine countries which have both the death penalty and LWOP, along with China, Comoros, Cuba, Israel, Kazakhstan, Lesotho, Nigeria, and Zimbabwe.

•There are currently over 41,000 prisoners serving LWOP sentences in the United States, compared to 59 in Australia, 41 in England, and 37 in the Netherlands. On a per capita basis, the United States LWOP population is 51 times Australia’s, 173 times England’s, and 59 times the Netherlands’....

•The United States, Canada, and Micronesia are the only federalist countries known to researchers allowing successive prosecution of the same defendant by federal and state governments for the same crime....

•Under international human rights law, if legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively. Though 67% of countries have codified that right, the United States has not....

•The vast majority of countries (84%) account for the age of the offender at trial, leaving the United States in the minority of countries (16%) trying and sentencing children as adults.

•The United States is the only country in the world to use juvenile life without parole (JLWOP) sentences, with an estimated 2,594 juveniles offenders serving such sentences.

From here.

VA PETA Shelter Kills Most Dogs Received

The organization People for the Ethical Treatment of Animals (PETA) is known for its hard line opposition to fur clothing and other economic uses of animals. It also runs an animal shelter in Norfolk, Virginia where the organization is based. But, that shelter killed 97.4% of the animals it received in 2006.

PETA has threatened legal action against bloggers who have characterized that high kill rate (higher than most other Virginia animal shelters), in a manner other than they way they would like it to be characterized. PETA has taken the position that it is more humane to kill animals that are "unadoptable" and that almost all of the animals it receives fit this characterization. The notion that mere unadoptibility is a sufficient ground for killing an animal is a philosophy not easily reconciled with the organization's mission and stances on other fronts.

ICE "Beyond Cruel"

The immigration system has no natural advocate for immigrants in the political system, and as a result, has developed a culture of indifference. The results are sometimes deadly, as the U.S. District Court notes in recent court ruling finding in favor of the survivors of an immigrant in a suit against the federal government and the involved federal officials, which the government parties moved to dismiss.

The Facts

The Court recounts the facts, which are well documented -- most come from documents disclosed by the federal government, and the remaining relevant facts are corroborated by third party medical records:

On March 27, 2006, Plaintiff Francisco Castaneda – an immigration detainee – informed the Immigration and Customs Enforcement (“ICE”) medical staff at the San Diego Correctional Facility that a lesion on his penis was becoming painful, growing in size, and exuding discharge.

On site doctors contacted "the Division of Immigration Health Services (“DIHS”), requesting approval for a biopsy and circumcision" because there was strong concern that the problem was penile cancer. It was denied, were further efforts to have that decision changed.

Plaintiff has submitted thirty-three exhibits of Defendants’ own official medical records documenting their knowledge of the fact that several physicians had concluded that Plaintiff’s lesion was very likely penile cancer, and that he needed a biopsy – a straightforward procedure – to rule cancer out. These documents show that nevertheless, Defendants refused to grant Plaintiff this simple procedure for almost eleven months, even while they noted that his pain and suffering were severe and increasing, that his penis was emitting blood and discharge, and that a second growth had developed. Therefore, if Plaintiff’s evidence proves true, from the first time Castaneda presented with a suspicious lesion in March 2006 through his release in February 2007, the care afforded him by Defendants can be characterized by one word: nothing.

As a result he suffered “'ten months of pain, bleeding, anxiety, loss of sleep, and humiliation while in ICE’s custody, the amputation of his penis, and nearly a year of grueling chemotherapy,' not to mention his eventual death." . . .

As the opinion notes (citations to the record omitted):

[A] biopsy was finally scheduled for early February. However, a few days before the procedure, Castaneda was abruptly released from ICE custody. Castaneda then went to the ER of Harbor-UCLA Hospital in Los Angeles on February 8, 2007, where he was diagnosed with squamous cell carcinoma. His penis was amputated on Valentines Day, 2007. . . . Harbor-UCLA confirmed that Castaneda had metastatic cancer. Castaneda began undergoing chemotherapy at Harbor-UCLA. However, the treatment was not successful, and on February 16, 2008, Mr. Castaneda died.

The Court's Analysis

The Justice Department argued (among other points) that the immigrant detainee had not alleged enough to state a claim against the government at all. In response, the Court ruled that:

The evidence that Plaintiff has already produced at this early stage in the litigation is more thorough and compelling than the complete evidence compiled in some meritorious Eighth Amendment actions. . . . the evidence suggests that not only did the individual Public Health Service Defendants ignore doctor recommendations to provide Castaneda with a simple procedure, they may also have lied about those recommendations.

The Court concluded by noting that:

If Plaintiff’s evidence [Ed. consisting almost entirely of federal government documents produced by the government] holds up, the conduct that he has established on the part of Defendants is beyond cruel and unusual.16

FN 16: After all, Plaintiff has submitted powerful evidence that Defendants knew Castaneda needed a biopsy to rule out cancer, falsely stated that his doctors called the biopsy “elective”, and let him suffer in extreme pain for almost one year while telling him to be “patient” and treating him with Ibuprofen, antihistamines, and extra pairs of boxer shorts. Everyone knows cancer is often deadly. Everyone knows that early diagnosis and treatment often saves lives. Everyone knows that if you deny someone the opportunity for an early diagnosis and treatment, you may be - literally - killing the person. Defendants’ own records bespeak of conduct that transcends negligence by miles. It bespeaks of conduct that, if true, should be taught to every law student as conduct for which the moniker “cruel” is inadequate.

Particularly culpable in the Court's summary of the records was Esther Hui, M.D. at the Division of Immigration Health Services who played a central role in overriding the medical judgment of the treating physician and denying care despite having detailed knowledge of the case and the medical skills to evaluate that information.

Also troubling was the conduct of Claudia Mazur, a DIHS nurse, who appeared to have lied about what the doctor's had recommended in a denial report of October 26.

As the Court explains, this was essentially a case of murder by spreadsheet (citations to the record omitted):

Dr. Hui and the DIHS included this false characterization in official reports despite the fact that a TAR recognized that both doctors “strongly recommend admission, urology consultation, surgical intervention via biopsy,” and despite that fact that [Ed. treating] Dr. Wilkinson reported that he had spoken to “the physicians at the correctional facility” and “[t]hey understand the need for urgent diagnosis and treatment.” Indeed, Dr. Hui herself recognized in a report that Castaneda might have cancer but “[s]ince this is an elective outpatient procedure, we decided that we would not admit him [to the hospital to have the procedure] at this time.” Plaintiff’s evidence also suggests why Dr. Hui was so interested in characterizing the surgery as elective; “as such the Federal Government will not provide for such surgery.”15 Plaintiff has thus submitted compelling evidence that Defendants purposefully mischaracterized Plaintiff’s medical conditions as elective in order to refuse him care. Dr. Wilkinson reported that Defendants refused to admit Castaneda to the hospital for a biopsy because they wanted a “more cost effective” treatment. Official records document Defendants’ circular logic that because they would not allow him to have the biopsy, “he DOES NOT have cancer at this time”; because he does not have cancer, he therefore does not need a biopsy. In other words, as long as they could label Castaneda’s condition elective, Defendants could remain willfully blind about his lesion and avoid having to pay for its treatment.

FN 15 The Court has serious questions as to the constitutionality of a policy of refusing to pay for all medical treatment that can be characterized as “elective” because, as evidenced by this case, the label fails to identify accurately who needs care. DIHS labeled the treatment in this case “elective” even while acknowledging that Castaneda’s condition was so “severe” that he would need a “resection” - full or partial removal of the penis. Indeed, Plaintiff’s evidence suggests that Dr. Hui defined “elective” so broadly that she believes the term to encompass life-saving treatment.

Quote of the Day

It is irrational that Mr. Angelos will be spending 30 years longer in prison for carrying a gun to several marijuana deals than will a defendant who murdered an elderly woman by hitting her over the head with a log.

- United States District Court Judge Paul G. Cassell (Utah), who sentenced both men on the same day (Angelos to 55 years, the murderer to 22 years).

Another California Three Strikes Injustice

A federal appeals court upheld a mentally ill man's three-strikes sentence of 25 years to life Wednesday for shoplifting two bottles of liquor from a Southern California market, a sentence that a dissenting judge called "barbarous.''...

Joshua, diagnosed as a paranoid schizophrenic, had been convicted of robbery five times since 1974 and had been in and out of prisons and mental hospitals in the decades before his shoplifting conviction[.]

From here.

The only factor that provides even a glimmer of hope for attacking this sentence on federal constitutional grounds is that there is a history of mental illness involved. But, equally egregious cases under California's three strikes law involving non-mentally ill defendants have been upheld by the U.S. Supreme Court in the past.

Everyone knows that California's three strikes law is broken; but there are enough cowards in power in California, Arnold Schwarzenegger, among them, who has talked the talk but then thwarted a reform measure, that the problem hasn't been fixed yet.

Colorado Compared

While Colorado has its own habitual offender statute, a sentence like this one for this offense, would be impossible, regardless of the Defendant's criminal history.

A theft of two bottles of liquor with a combined value of $62, as was this case here, would be a class 3 misdemeanor in Colorado, punishable by up to six months incarceration at a local jail, and a hefty fine. This would be the likely punishment for the same offense that resulted in 25 years to life for Joshua.

Multiple thefts in a six months period can be aggregated, however.

Under changes to Colorado criminal law that will take effect this summer, the cutoff for felony theft will increase from $500 to $1000. There is no provision in Colorado for sentencing a habitual offender who commits misdemeanor theft as a felon.

Minor Felony Thefts In Colorado

Crossing the $500 pre-July 1, 2007/$1000 post-July 1, 2007 felony threshold if the total amount is under $15,000 ($20,000 as of this summer) is a non-violent class 4 felony in Colorado, normally punishable by two to six years in prison, plus three years mandatory parole, plus a hefty fine.

In Colorado, probation or reduction of a sentence below the ordinary minimum sentence isn't allowed if the offender had two prior felony theft from a store convictions in the last four years (a factor that wouldn't apply in Joshua's case).

The sentencing range for class 4 felony theft in Colorado if you are on parole at the time is 4-12 years. Where the amount stolen was small and there were mitigating factors, as it appears that there were in this case, a judge would be unlikely to impose the maximum sentence within that range.

The longest punishment for a felony theft, for which Joshua would be eligible if he committed felony theft, in Colorado, applies when one has four prior felonies. The habitual criminal sentence in that case for a class 4 felony theft would be 24 years in prison (one year less than the minimum sentence in California for petty shoplifting by an offender with at least two prior felonies). With two prior felonies the habitual criminal sentence for a class 4 felony theft would be 18 years.

While these sentences are harsh, they don't approach the severity of California. Felony theft never qualifies for Colorado's life imprisonment habitual offender statute, which covers only serious violent crimes or the very most serious (class 2) non-violent crimes.

It is also worth keeping in mind that there is probably only one judicial district in the state, the one presided over by Republican District Attorney Carol Chambers whose district includes Denver suburbs Arapahoe and Douglas counties, where a district attorney would typically exercise discretion to seek a habitual offender sentence in a marginal theft case involving a man with a long history of mental illness. Almost every other district attorney in the state would accept a plea to a less severe non-habitual offender sentence in such a case.

The dissent notes that in federal court, someone convicted of stealing a billion times as much as this fellow did, receives a shorter sentence.

35 Years In Solitary Confinement

Details here and in the link found there. The conviction itself is doubtful, the justification for putting anyone in solitary confinement for 35 years (three men were subjected to it, one was exonerated after 30 years) more so. Louisiana is not known for its quality of justice.

Rare 8th Amendment Defendant Win

A man sentenced to 26 years to life under California's three strikes law for taking the written part of the driver's license test for an illiterate cousin under the argument that a life sentence for the third of three "serious" felonies are disproportionate to the life sentence under the 8th Amendment, if the defendant was not personally engaged in violent activity during any of the offenses.

In this case the prior two strikes were a juvenile burglary and an armed robbery conviction as an adult six years after the juvenile offense and fourteen years prior to the most recent conviction. The driver's license offense would have been a misdemeanor itself, but for the prior conviction. The man argued on appeal that he was not personally armed or violent during the armed robbery and should be allowed to argue that this was the case in the sentencing hearing, and the 9th Circuit agreed, holding that if this was the case, that the 8th Amendment was violated. The U.S. Supreme Court declined to review the case.

Of course, the more fundamental problem is California's three strikes law itself, some of whose flaws are well illustrated in this case. First, it includes juvenile offenses. Second, there is no time range within which the strikes can be committed, once you have two strikes it doesn't matter if you stay clean for decades afterwards. Third, strikes don't have to be terribly serious felonies. And fourth, strikes can include offenses which would be a misdemeanor if committed by a first offender.

A juvenile burglary, misdemeanor forgery conviction and being a lesser participant in an armed robbery do not an unredeemable felon make, particularly when these offenses are widely spaced over twenty years. It is an injustice to the man convicted and all who rely upon him for support, and it is an injustice to the people of California who have to pay for it.

There is nothing fundamentally wrong for enhancing punishments for recidivist offenders. They pose a high risk off reoffending so keeping them in prison and off the streets for a longer period than a first offender makes sense. But, punishments also need to bear some relationship to the crime, even for recidivists.

Colorado Compared

Colorado, while not perfect, is far less draconian than California.

To qualify for life imprisonment on the basis of three strikes in Colorado, each of the felonies must be a class one felony, a class two felony, or a violent class three felony. Section 18-1.3-803(1), Colorado Revised Statutes. This means that strikes are limited to crimes like murder, aggravated assault, kidnapping, armed robbery, and aggravated rape. In practice, this results in no meaningful sentence enhancement for class one felonies, which already carry a life sentence, and rarely more than doubles a sentence for a class two felony or a class three violent felony, which already carries a sentence of up to twenty-four years and in some cases longer.

Alternately, one can face life imprisonment as a habitual criminal in Colorado by committing a felony crime of violence, when one had already committed four ordinary felonies tried on separate occassions and involving separate criminal episodes, and have already received one previous aggravated habitual criminal sentence. Section 18-1.3-803(2.5), Colorado Revised Statutes. This does not appear to include juvenile offenses. If the current offense was a class three felony or worse, this no more than doubles the sentence. If the current offense is a class four violent felony, this no more than triples the sentence in most cases. If the current offense is a class five or class six violent felony, this could increase the sentence sixfold or more.

Colorado has other habitual offender statutes, but they result merely in double (two serious burglaries within ten years), triple (three non-trivial felonies within ten years), or quadrupile (four felonies) the regular sentence for the crime most recently committed. Thus, the punishment bears some relationship to the crime, and in the case of a relatively minor most recent offense, is much shorter than a life sentence.

Thus, the only time you can receive more than four times the usual maximum sentence in Colorado, is if you a convicted of a violent class five or six felony (such as a a first or second degree assault causing serious bodily injury committed in the heat of passion) and have four prior felonies, which makes it a little hard to feel much sympathy for you, even if you are getting a relatively raw deal.

The defendant in the California case described above wouldn't even be considered a habitual offender in Colorado at all due to the juvenile case, the time elapsed between the cases and the fact that the third would be a misdemeanor, since only a handful of offenses go from misdemeanor to felony status based on previous convictions and even then only in very specialized situations.