Left to Die
If, as Dostoyevsky claimed, the degree of civilization of a society can be measured by the treatment of its prisoners, we are in even deeper trouble in New Orleans than many realize. In this city, under the radar of most media, the biggest prison crisis since Attica is unfolding. And no one seems to care, because despite Hurricane Katrina's having "exposed" American poverty and racism, mass incarceration of poor black Americans remains an accepted, if overlooked, fact of modern life. After all, the thinking goes, they did the crime, now they have to do the time. However, like everything else in New Orleans, it's not so simple.
The New Orleans jail complex sits behind the old gothic Orleans Parish Criminal Court and backs up to Interstate 10 in a run-down area of the city. On the days following Katrina, the entire complex sat beneath feet of water. At that time the jails housed more than 8,000 prisoners, the majority of whom were pretrial detainees, people with the fundamental presumption of innocence but without the funds for bail or a lawyer to get them out before trial. There was a larger than usual population of pretrial inmates when the storm came because before it arrived the police had conducted sweeps to clear the streets, picking up people for petty crimes like loitering or trespassing, and because other parish jails had evacuated their prisoners to New Orleans.
Despite the universal awareness of the risk of flooding in the city, the low-lying jail failed to execute any real evacuation plan. Instead, even faster than New Orleans police abandoned the citizens of New Orleans, many of the sheriff's deputies who guard the city's prisoners abandoned their charges and left men and women wondering whether they were going to die as water rose in their locked cells. As prisoner Dan Bright told Human Rights Watch, "They left us to die there."
Prisoners helped one another escape the flood by prying open cell doors, breaking through windows and finding higher ground in the jail. While officials deny that any bodies were found, many prisoners who were there insist that they saw floating bodies. Those who made it out were rounded up by the few remaining guards and gathered on a nearby Interstate overpass. People remained there for almost two days--without water, under the sun--appearing as a blur of orange jumpsuits from the CNN cameras in helicopters flying above. They were left to urinate and defecate on themselves, hampered by restraints so tight that a month later attorneys who visited them could still see dark purple bands around their wrists. Eventually buses arrived and the detainees were transferred randomly to prisons around the state, but without the papers that might easily distinguish a person who had been arrested for illegally reading tarot cards or "angling without a license" from someone charged with a serious, violent crime.
As bad as this was, it was only the beginning of the indignities the evacuated prisoners were to face. They found themselves in an impromptu patchwork of overcrowded state prisons, parish jails and facilities opened just to accommodate evacuated prisoners. The unluckiest among them, mostly from Jefferson Parish, found themselves at Jena Correctional, a former juvenile prison owned by the Wackenhut Corrections Corporation that was closed after the Juvenile Justice Project of Louisiana, Human Rights Watch and the Justice Department exposed widespread beatings of incarcerated children there in the late 1990s. That spirit was kept alive in the new incarnation of the prison: Evacuated prisoners were routinely and viciously beaten by their jailers, guards from other facilities who were without a chain of command and for whom there was zero possibility of accountability. Rachel Jones of the Louisiana Capital Assistance Center, a pro bono attorney who was working there at the time, told me that after being a public defender in Brooklyn and a capital trial attorney in Louisiana, "I have never seen anything like it."
Jones said the inmates were bruised all over their bodies. They passed her little notes saying "help" when the guards weren't looking and reported that guards were calling them "nigger" and "boy." When she returned days later to follow up, they had been brutalized even more; some reported having received beatings from guards as retaliation. After visiting with many inmates at various prisons and jails, it became clear to her that these incidents were widespread, and she made it her top priority to get guys who didn't belong there out of jail.
Jones and a handful of other lawyers, including Phyllis Mann, a veteran Louisiana criminal defense attorney, began poring over the available records on the evacuated inmates and found thousands who had been unconstitutionally and illegally imprisoned. Many should have been released weeks or months earlier, as their sentences had long since expired. Some had been picked up on charges in the days before the storm for municipal offenses like unpaid traffic tickets and had never been before a judge, as required by the Constitution. Others were simply sitting in jail, awaiting trial for minor crimes for which the maximum sentence was far less than the amount of time they had already served. While some of these people have been released in the past month, many remain incarcerated and separated from their families when they are most needed. For example, as recently as mid-November, David Moffett, a 43-year-old man from New Orleans, was still incarcerated in a Bossier Parish jail on a ten-day sentence begun August 22 for public drunkenness.
Who was there to make sure that these citizens, victims of one of the country's worst natural disasters, were not further deprived of their Eighth Amendment right to dignified treatment as prisoners, their right to due process under law and their right to the presumption of innocence? There was no public defender's office zealously fighting for their rights because New Orleans has no real public defender's office. Nor was there a crusading prisoners' rights organization on the ground to provide meaningful oversight of the state's treatment of its vulnerable wards. Beyond the handful of volunteer lawyers, no one was there for these people, and though the volunteers have been diligent, their work has not been sufficient to address the needs of everyone.
It is hard to believe that a state with one of the highest per capita incarceration rates in the United States--which itself is a world leader in incarceration--does not have a single organization or agency dedicated to the rights of prisoners, but it's true. Sadly, by orders of magnitude, there were more rescue people in Louisiana to protect the "animal rights" of dogs than there were lawyers or activists to protect the human rights of thousands of our citizens.
While New Orleans does not have a full-time public defender, the city is obligated by the Sixth Amendment of the Constitution, like every other town in the United States, to provide free attorneys to poor people who are otherwise unable to defend themselves against charges leveled by the state. That service in New Orleans is provided through the Orleans Parish Indigent Defender Board, which contracts with a group of part-time attorneys who, when they are not taking paid cases or writing wills and estates for their regular clients, are assigned to represent the thousands of poor people annually charged with crimes in New Orleans. Like so many things in the city, these part-time contracts have become patronage positions appointed more on the basis of fealty to political players than concern for the rights of the accused. In the weeks and months after the storm, these public defenders were nowhere to be found, although they were counsel of record for nearly all the evacuated prisoners. When asked about the prison crisis and his concerns about the rights of his clients, Tilden Greenbaum, head of the Indigent Defender Board, told the New York Times his clients were being patient. "Sooner or later, we're going to have to start making noise about it," he said. "But given the magnitude of what everybody's been through, now is not the time to push."
Meg Garvey, another pro bono lawyer who has been working with evacuated inmates, isn't feeling patient at all. She started pushing months ago to try to help these clients. "So many of these guys were in here for minor stuff, and when the storm came their communication with their families was completely cut off," she said. "They couldn't be part of keeping their families safe or together. Now the world is changing dramatically while they are in prison. Babies are born. Their grandma dies. Their family resettles in Texas. And they are in for nothing. They are desperate to return to their families."
Given all the minor things with which people ordinarily run out of patience, like rush-hour traffic and long lines at the bank, it is hard to imagine much patience from people who have been unconstitutionally detained for months after a nightmarish experience of rising water in a locked cell. Certainly, it is inappropriate for their lawyers to be counseling patience while they are wrongfully imprisoned. However, according to Garvey, the prisoners are incredibly patient, and they're grateful for the assistance from the handful of lawyers who offered help without any expectation of compensation and disregarding the turmoil that their own lives had been thrown into by the storm. For the rest of us, that there are a few pro bono lawyers providing a constitutionally mandated service the government is neglecting and has neglected for decades should sting, not give comfort.
New Orleans needs a politically independent public defender's office--one that not only provides the minimum representation guaranteed by the Constitution but that deals holistically with clients, their families and their communities. Such an agency could begin to address the collateral consequences that mass incarceration has on the families and communities where a large percentage of adult men are behind bars. Further, we need public institutions dedicated to the principle that the rights of prisoners are not mere abstractions but guarantees, and that there are actual remedies when those rights are violated. This is imperative in a state where incarceration has become the one-size-fits-all response to social ills caused by failed schools, a decimated economy and meager and crumbling public housing.
Here as elsewhere, such institutions do not need heaps of money. They require instead a change of attitude--whereby people deprived of their personal liberty are still valued and protected by society. In the legal defense context, this means dedicated, full-time public defenders insulated from political pressure, like the Public Defender Service in Washington, DC, or the Bronx Defenders in New York City--offices of true believers who make the adversarial process a challenge to the state's immense power to incarcerate and even kill its citizens.
The storm created opportunities for structural reform in areas where the government has long failed its citizens. With the city's dysfunctional indigent defense almost nonexistent, this may be the only chance in a generation to re-create a major urban public defense system in a manner that addresses the impact of criminalization and mass incarceration on poor families while providing constitutionally mandated services.
New Orleans is a struggling city in one of the poorest parts of the country. We have been flattened by a storm. There are of course many other pressing needs as we rebuild the city and the region. But if we are ever going to be a civilized city, or country, we are going to have to begin to work as hard for the weakest and most maligned among us as we do for the strongest and most sympathetic. If we don't, any of us could one day face the consequences.