by Bob Williams
Last month, PLN's cover story addressed the terrors and tribulations faced by prisoners when Hurricane Katrina devastated New Orleans on August 29, 2005 -- not just the horrors of the storm, but also the brutality and abuse inflicted by ill-prepared and sadistic prison guards.
Unfortunately, for many prisoners the ordeal didn't end there. With court records lost or under water, evidence and witnesses scattered far and wide, and the New Orleans justice system in shambles, thousands of prisoners were held for lengthy periods of time without trials or past their release dates. Their odyssey became known as doing "Katrina time."
Over 6,000 prisoners who had been packed into the Orleans Parish Prison (OPP) were displaced as a result of Hurricane Katrina. By September 2, 2005, almost all of those prisoners had been removed from the flooded jail buildings; they were bused to 38 facilities across the state, including the Elayn Hunt Correctional Center, Jena Correctional Facility, Bossier Parish Maximum Security Jail, Lafayette Parish Correctional Center, and the Louisiana State Penitentiary at Angola. Another 2,000 prisoners were evacuated from surrounding areas.
Due to a complete lack of preparedness by OPP officials, during the evacuation the prisoners became hopelessly mingled together -- pre-trial detainees were mixed with convicted felons, and people serving short jail sentences were housed alongside prisoners facing the death penalty. Staff at the receiving facilities had no idea who the prisoners were, what they were charged with or when they should be released.
Soon thousands of Katrina-impacted prisoners were being held past their release dates or court dates. Those who were mere days from release before Hurricane Katrina had to wait months before they were found and set free.
Tom Harris was arrested on August 25, 2005 for failure to pay child support. While he should have been released within several days, he didn't regain his freedom until more than five months later on February 6, 2006. Over-detentions like Harris' were commonplace.
In the weeks immediately following the evacuation of prisoners from New Orleans, dozens of lawsuits were filed over the extended incarceration of nearly 1,200 detainees. For example, 94 women housed at Angola filed for immediate release in September 2005. Only 16 were released days later; the rest had to fight much longer to win their freedom. Defense attorney Phyllis Mann and other volunteers filed 2,100 wrongful imprisonment petitions in a five-month period, leading to almost 1,000 releases.
A month after the OPP evacuation, the Louisiana Dept. of Correction (DOC) had set free only 675 of thousands of prisoners held past their release dates, and was releasing only 35 per day in alphabetical order, a process described as "completely unfair" and "arbitrary" by Julie Kilborn, an attorney working on the problem for the National Association of Criminal Defense Lawyers.
It was alleged there were financial reasons why the DOC released people at such a slow pace. The DOC reportedly received funds from the Federal Emergency Management Agency (FEMA) for each prisoner in custody -- the more prisoners, the higher the per diem payment. According to one report, FEMA's projected payout to the DOC for just one day in December 2005 was over $146,000. Thus, there was a major fiscal disincentive for the DOC to release prisoners quickly.
Shannon Sims, for example, served seven months awaiting trial on misdemeanor prostitution charges, for which the maximum sentence was only six months. She was released after being discovered by an assistant to Criminal Court Judge Calvin Johnson.
Some prisoners, like Greg Davis, had been imprisoned for their inability to pay court fines and costs. This was a regular practice in New Orleans: The poor are assessed fines and costs that may total $40 per month for up to five years. They are then routinely re-incarcerated for no other offense than failure to make payments. Davis survived the horrors of OPP and remained lost in the system until March 2006 because he was unable to pay $448 in past-due court fines.
Another OPP prisoner, Pearl Bland, was supposed to be released on August 12, 2005. She remained in prison because she owed $398 in fines and fees from a prior conviction. By the time Bland was discovered and finally released with the help of the Tulane Law Clinic, it was July 2006.
An untold number of arrestees never even had a bond hearing. Thousands of displaced prisoners were held on misdemeanor charges such as public drunkenness, trespassing, disturbing the peace, lewd conduct, prostitution or even minor traffic offenses. By November 2005, Criminal Court Judge Calvin Johnson, frustrated with the situation, ordered the release of over 100 prisoners. The district attorneys cried foul and the state Supreme Court stayed the order, but did allow the release of 34 detainees.
After Hurricane Katrina, Judge Johnson was faced with thousands of pending cases involving indigent defendants and only nine available public defenders. He said this created "at least a serious question, if not prima facie evidence, that indigent defendants in Orleans Parish are not receiving, and cannot receive, the effective assistance of counsel to which they are constitutionally entitled." Even Orleans Parish District Attorney Eddie Jordan acknowledged that some defendants "could very well have slipped through the cracks."
Criminal Court Judge Arthur L. Hunter, Jr. also actively sought to reduce the backlog caused both by Louisiana's dilapidated justice system and Katrina's carnage. With approximately 6,000 detainees still jailed without attorneys or court dates months after Katrina, Judge Hunter threatened to start releasing prisoners in July 2006. He backed down, but in September of 2006 began a case-by-case review, warning that "the constitution makes no distinction between murder and misdemeanors." He told prosecutors to weed out the cases they were not likely to win and get the backlog moving.
Another case that slipped through the cracks was that of Tammy Sims, a 43-year-old mother who suffered from schizophrenia. Despite an order to transfer her to the forensic mental hospital in Jackson for evaluation on August 18, 2005, she remained at OPP until there was room in the hospital. After surviving the chaos of Katrina, she ended up at the state's women's prison at St. Gabriel with no attorney and no trial date. Sims was finally released on June 12, 2006, but only after Sara Johnson, a third year law student at Tulane University, came to her aid.
According to Corinne Carey, a lawyer and researcher for Human Rights Watch, "keeping people locked up six weeks after the storm for petty offenses they may not have even committed makes a mockery of due process." Pamela Metzger, director of the Tulane Law Clinic, agreed. "I understand that Hurricane Katrina upset everyone's lives," she said. "But as far as I know, there are no disaster exemptions to a person?s constitutional rights."
James Mitchell's 20-day sentence for trespass ended on September 1, 2005. A DOC lawyer announced in court on December 6 that Mitchell had been released from custody months earlier. Two days later, a reporter from the Daily Advertiser interviewed him. He was still in jail. Even the reporter's list of prisoners had Mitchell's name crossed off as "released"; however, he wasn't set free until December 21, more than three months after the end of his sentence.
Such over-detentions typified the post-Katrina justice system, where the state Supreme Court, on November 22, 2005, temporarily suspended the usual time limits in which prosecutors had to file charges (60 days for felonies and 45 days for misdemeanors). This meant detainees could be held for up to five months before being charged with any crime.
Nor were foreign citizens immune from lengthy detentions and inhumane treatment. Ashley McDonald, 30, was big news in his Australian homeland while his family and the public waited almost two weeks to see if he had survived Katrina. McDonald had been arrested on August 28, 2005 for trespassing when he refused to leave a bar after drinking too much. He awoke the next day in jail as Hurricane Katrina hit, followed by four days with "no food, no water, no power, no air-conditioning, no toilets." He said the guards "basically threw away the key to the jail for four days."
After being moved to the Broad Street Overpass, McDonald was taken to the yard at the Elayn Hunt facility, where he was robbed of his OPP-issued shirt by a screwdriver-wielding prisoner. He was released on September 9, 2005, thanks in large part to media attention and concern expressed by Australian authorities.
By the end of 2006, hundreds of New Orleans detainees still remained in limbo. Prisoners who hoped to file suit over their over-incarceration, however, may be out of luck. Soon after Katrina, Louisiana lawmakers introduced a bill that stated, "no prisoner in the custody of the sheriff or law enforcement agency who was evacuated to another prison or jail during and immediately after Hurricane Katrina or Rita, and who was not released within the time required by the Code of Criminal Procedure or Title 15 of the Louisiana Revised Statutes of 1950, shall have a cause of action for damages against the sheriff or law enforcement agency for the failure to timely release the prisoner," unless "within a reasonable length of time following Hurricane Katrina or Rita, the sheriff or law enforcement agency makes no attempt to ascertain when the prisoner is to be released and fails to release the prisoner from custody."
The bill was signed into law by Governor Kathleen Blanco on December 6, 2005, and made retroactive to August 29. See: Louisiana R.S. 29:735(2).
New Orleans' justice system, which was grossly dysfunctional before Katrina, still has not recovered. On March 30, 2007, Judge Hunter ordered the release of 42 detainees due to inadequate representation by the public defender's office, and said he would no longer allow public defenders to represent defendants in his court.
"Hurricane Katrina is no longer an excuse," he fumed. "Indigent defense in New Orleans is unbelievable, unconstitutional, totally lacking in basic professional standards of legal representation and a mockery of what a criminal justice system should be in a Western, civilized nation."
In other words, it's back to business as usual for Louisiana prisoners.
Sources: www.npr.org, New York Times, www.democracynow.org, New Orleans CityBusiness, The Washington Post, The Boston Globe
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