Judith Armatta

FROM A WORK IN PROGRESS

[Following revocation of probation for smoking pot and missing a meeting, the judge reminds my grandnephew (who I call Daniel here) that he told him he had to be perfect, something not possible for a 20 year old with mental health issues). After the judge ordered my nephew to prison, his grandmother spoke up, “The system didn’t have to be perfect.” The judge warned her not to talk. When she asked if she could hug her grandson who was in tears before they took him away, the judge told her to shut up or he’d send her to jail!” And so dies faith in justice and the rule of law not only for the convicted, but for family as well.]

Did the judge really think prison would make him better? His attorney had implied as much when she was unable to find a treatment program in the community and naively suggested a stay in prison would provide one. Or was the judge merely punishing Daniel for not being perfect? Sending this young man to the dangers and harsh conditions of prison to live in a milieu of hardened offenders would not make him a better person. He would be lucky just to survive.

*    *     *

Three a.m. Flipping like a hooked fish on a river bank, over and over, from my right side to my left, and onto my back, beginning the sequence again and again. My restless brain refuses to imagine lying on soft meadow grass, watching clouds move among a cathedral of fir branches, listening to the chirps and trills of birdsong. My attempt at meditation rouses images of a small, tight space with glaring light, gray cement walls, a door that can keep out hurricanes and keep a young man in, steel bars, the headache-inducing sound of metal slamming metal, a cacophony of unquiet voices, a hard bed with a meager blanket, a metal toilet with no seat, tough, tattooed prisoners with muscles bulging.

Daniel is in segregation, locked in an 8 by 10 foot cell 23 hours of every 24. He cannot make or receive phone calls. We are dependent on the prison staff to know if he is alright. For a while they answered my phone calls, said they checked on him, reassured me. No longer. I call and leave messages, asking about his meds, his health, his state of mind. I tell them he sent a letter. He is afraid of what will happen when he is released into the general population. He is a sex offender. His victim was a “child.” Nevermind that the sex was consensual and she lied about her age. He is called a “chimo” and a “rapo.” They will beat him up, he writes. Sex offenders get raped in prison.

            I want to have a conversation with the judge who so casually revoked Daniel’s probation, as if he were signing a permission slip to leave school early. The judge (a former prosecutor), a current prosecutor, and the probation officer were of one mind. This kid was uppity and needed to be taught a lesson.

            I want to wake this judge and ask how he can treat people that way. I want him to feel the pain he has caused, not just to my grandnephew but to his grandmother, his mother, his father, his grandfather, his aunts, his sisters, his girlfriend, his son. I now understand “gut wrenching.” I want this judge to see into the future like I do every night. A young man whose life is ruined. He has no prospects. It will be a miracle if he finds even the lowest paid, unskilled job when he gets out. He will not be able to support his son. Will he even find a place to live? Since felons are denied public benefits, he will have to beg or eat in soup kitchens. And how will he get the medication and the treatment he needs? He will not. The prison door will revolve as the judge revokes his parole again and again.

            The judge is elected by the people. Is that what makes him tough on crime? To them, my grandnephew is a criminal, a felon of the worst kind: a sex offender, “one of the most despised groups of people in American society—along with terrorists and perpetrators of genocide.”[i] . . . .

            It’s now nearly 5 a.m. Abby will wake soon. Maybe then I will sleep. I wonder what Daniel is doing now. It’s the middle of the night in Oregon. I hope he is not having a restless night. It can signal a manic episode and then he’ll end up in the hole again. And the judge? Sleeping peacefully? No second thoughts about the young man he so cavalierly sent to prison for a year? Sleeping the sleep of the just.

[i]Lisa Anne & Laura J. Zilney, Reconsidering Sex Crimes and Offenders: Prosecution or Persecution? Santa Barbara, Denver,  Oxford: Praeger (2009) p.xiii.

I am on the board of two nonprofit organizations. One advocates for adults who survived childhood sexual abuse. The other consists of friends and families of people convicted of sex crimes. You might think that makes no sense. Isn’t one the enemy of the other? Isn’t one bad and one good? I don’t think so. All are human beings. Those convicted of sex offenses have been held accountable. Given the recidivism rate of 5%, they are less to be feared than the rest of society. Some who were convicted and made to register as sex offenders for life* were innocent or guilty of behavior that harmed no one – streaking, taking photos of their nude children, sexting while a minor, brushing dirt off a child’s clothed bottom, exploring bodies through childhood curiosity.

Aren’t those who were victimized scarred for life? Some. Not all. It is a disservice to survivors to tell them they can never recover from abuse they suffered as a child. Everyone is different. Many survivors are able to heal and put it behind them. Some even forgive their abusers. Why can’t we? Forgiveness allows us to rebuild community. It lifts something from our souls – the anger and hatred that act like cancers eating us from within.

Not all those who have committed sex offenses can be redeemed. Not all are alike. Some are pathological serial offenders and need to be separated from the community. These are not the majority. Yet in the last 30 or 40 years we have greatly expanded the types of behavior that are sex crimes, while branding all those convicted with the same indelible mark for life: “sex offender.” Punishment is never ending. It can include placement on a public registry; notification of neighbors, colleagues, and others; restrictions on where one can live; limitations on travel (passport identification as a sex offender) and association, as well as extralegal discrimination such as inability to get a job, find housing, or attend school.

Recently, a young star OSU baseball player, Luke Heimlich, was outed as a convicted sex offender. Luke molested a young relative five years ago. She was four when it began and he was 13. His actions were reprehensible, even considering his brain immaturity. Luke served two years’ probation and completed sex offender treatment. He has expressed remorse for the harm he caused and is trying to become a decent, contributing member of society. But what he did at 13 and 15 continues to follow him. After revelation of his past and a public outcry, he stepped down from the baseball team, which is on its way to the College World Series. Before The Oregonian informed the public about Luke’s past, he was considered a top draft pick by Major League Baseball. After, no team selected him. Some have suggested he be banned from athletics, while others that he be banned from attending university.

This is not a contest of sympathy. ‘If we have sympathy for Luke, we cannot care about the little girl (now 11).’ ‘If we are (justifiably) angry at what happened to her, we must hate Luke and ostracize him from our community.’ Are our hearts so small that they cannot encompass caring for both? Luke is not a monster. He is a young man who did something terribly wrong. He has been held accountable and received treatment. He is highly unlikely to commit another sex crime. We should spend as much energy preventing sexual abuse as we do righteously condemning those who are trying to make amends and contribute to the community. *In Oregon, those convicted of sex crimes may apply to be removed from the registry after specified periods of time following the end of supervision. ORS 181.820

Last week I attended the Oregon Innocence Project's annual fundraising event (given my limited income, I have no business contributing but I always do!). There was a full house -- lots of well-heeled lawyers. Stephen Wax, OIP legal director -- formerly federal public defender for 31 years, gave an update of their work. Here are some highlights.

In their three years of existence, they have received about 350 requests from prisoners to investigate their cases and have investigated 238 -- since the beginning of the OIP three years ago. The majority of the requests are from people convicted of sex offenses. Forty-six percent (46%) of these cases involved a child. The OIP has taken on four cases, two involve sex offenses, one is a murder with a death sentence, another is manslaughter. In two of the cases, the prosecutors have cooperated in securing DNA testing. In the capital murder case, the prosecutor refuses to cooperate, despite considerable evidence of innocence. (Steve didn't say who the prosecutors are.) Sixteen (16) people convicted in Oregon have been exonerated to date for a total of 65 lost years.

Two of the San Antonio Four (Anna and Cassandra) were special guests and talked about their ordeal and their eventual exoneration 20 years after being charged. The four Latina women had recently come out as gay. The seven and nine year old nieces of one were coerced by their father to make the allegations of gang rape. Homophobia contributed substantially to their prosecution and ultimate conviction. The women refused to plea bargain because they were innocent. Three were sentenced to 15 years, the girls' aunt received a 37 1/2 year sentence. While in prison, they refused sex offender treatment for the same reason, their innocence, and, as a result, spent time in solitary confinement. One woman had two small children, another was pregnant and had a 2-year-old, when they went to prison. The women served from 12 to 16 years in prison. Now, they are traveling throughout the U.S. to tell their story. They were exonerated in November 2016. Here's CNN's story: http://www.cnn.com/2016/11/24/us/san-antonio-four-exonerated/

Not included, but what the women told us last night:

1. The nieces' father made up the charge because their aunt refused to date him.

2. The father later married another woman who had two sons. They had a child together. After they divorced, the father coerced their daughter to accuse one of the sons of sexual abuse. He was found guilty and sent to prison at 17 and is now a registered sex offender for life. The father has not yet met his karma.

While Texas will compensate these four women for the lost years, Oregon has no compensation law for those wrongfully convicted. Nationwide, the Innocence Project reports 2,028 exonerations, for a total of 17,693 years lost. Forty-seven percent (47%) of these exonerees were black, 12% here Hispanic. Thirty-nine (39) percent were convicted of murder, 15% of sexual assault, 11% of child sexual abuse.http://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx

Oregon Innocence Project: www.oregoninnocence.org

In the 1970s when I was a prisoners’ rights attorney, Oregon had three prisons – the old maximum security prison, a newer medium security lock-up, and a place to hold the far fewer women who were incarcerated. Today, there are 14 prisons, euphemistically called “correctional institutions.” The big prison building frenzy grew out of the War on Drugs and the tough on crime movement in the 1980s and 1990s (with its beginnings in the 1960s).  States passed ‘three strikes you’re out’ laws, mandatory minimum sentences, lengthened sentences, did away with good time, increased remand of juveniles to adult court, and criminalized more and more behavior. The result left the U.S. with 25% of the world’s prisoners (and only 5% of its population). The cost and ripple effects were enormous.

Highly significant, but little noticed, was a historical change in our criminal justice system, as power shifted from judges to prosecutors. Today, prosecutors decide what charges to file (regularly overcharging to coerce a plea) and what kind of plea bargain and sentence to offer. At least 90% of cases are resolved through a plea bargain, giving the lie to the right to trial by jury. Mandatory minimums attached to certain crimes tie judges’ hands – and the prosecutor emerges as the most powerful person in the criminal justice system.

Over the last few years, a widespread, bipartisan movement for criminal justice reform has emerged. Usual adversaries like the American Civil Liberties Union (ACLU) and the Koch Brothers have joined forces, recognizing that our current policy of mass incarceration is draining economic and human resources, destroying communities, and not achieving the kind of safe and democratic society we want. A number of states preceded federal reform by acting to reduce their prison populations, led by Texas, New York, and New Jersey. Oregon might well have been among them, had it not been for opposition from district attorneys.

This week, the ACLU of Oregon released a report exposing prosecutorial obstructionism that severely limited criminal justice reform efforts initiated by former Governor John Kitzhaber in 2010. For three years, a commission he appointed studied mass incarceration in Oregon and how to reduce it, given its unsustainable cost. District attorneys were a part of that discussion until, at the 11^th hour, they walked out. The commission submitted its report to the governor who designed a fairly comprehensive reform agenda to submit to the legislature in 2013. The prosecutors attempted to bury it. In the end, as the ACLU report reveals, they made a deal with the governor. For removal of certain reforms, including one that would limit Measure 11’s automatic placement of juveniles in the adult system, the district attorneys’ association would not oppose the bill. But, the bargain went one step further. It required the governor to agree not to introduce any further sentencing reform for five years. David Rogers, the report’s author and executive director of the ACLU of Oregon, states: “Such an agreement was unprecedented.” That agreement should not bind Governor Kate Brown, however.

While the governor’s 2013 legislation has slowed growth of the prison population, the state still had to open another prison this year. With Oregon’s continually increasing population, the Department of Corrections (DOC) predicts continued growth of the prison population. While the percentage of men sentenced to prison is falling, that of women is rising. The DOC does not know where they will put them. The ACLU report concluded that, “It is hard to imagine we will significantly and sustainably make our approach to public safety and crime more effective and more just until we see a different kind of engagement from and with district attorneys.”

Contributing to the problem of prosecutors’ obstructionism is their near lack of accountability to the public. While district attorneys are elected in all of Oregon’s 36 counties, they mostly run unopposed (the report found that was true in 78% of elections over the past ten years). In addition, the practice of a D.A. stepping down before her or his term is over allows the governor to appoint a replacement, giving that person (usually a chief deputy in the D.A.’s office) an advantage in the next election. The appointment process lacks transparency. Are there criteria by which potential appointees are judged? We don’t know. Nor does the general public know much about the district attorneys they elect. The ACLU report calls for public education about the role of the district attorney and the philosophies and backgrounds of those seeking the office.

As the report also makes clear, there are progressive district attorneys who have developed smart on crime programs. Over my career, I’ve had the honor of working with some of Oregon’s best prosecutors. They should be a role model for those up and coming deputy D.A.s instead of ‘tough on crime’ obstructionists stuck in the last century.

The ACLU report can be downloaded at:

http://aclu-or.org/sites/default/files/Roadblocks_to_Reform_Report_ACLUOR.pdf