Tag Archives: justice

Filth, disease, sex and violence for South African female inmates

By Ruth Hopkins
March, 2016

© Palesa 2016

© Palesa 2016

International Women’s Day on March 8 turns the spotlight on the fate of women, in particular their achievements and the slow pace of progress. An often overlooked group are women prisoners. Their needs, views and struggles barely figure in feminist discourse, let alone in the mainstream debate in society.

Pollsmoor Prison in the Western Cape of South Africa is known for its extreme overcrowding – 300% above its capacity – which feeds into gang violence and poor sanitary conditions. Life-threatening diseases, such as tuberculosis, flourish in the poorly ventilated and overcrowded cells.

About 740 of the 8 465 inmates are women. Nationally, 3 029 women – or about 2.3% of the entire inmate population – are imprisoned, according to the 2015 annual report of the Judicial Inspectorate for Correctional Services.

Female wardens show visitors to the meeting room at the unsentenced section and ask them to leave their possessions behind a desk.

Palesa*, a dreadlocked woman in her mid-30s with big, intense eyes, waits for me on the other side of the glass partition. We both lean in to hear each other speak, through a faulty intercom.

“See this?” she asks, raising her index finger to a scar above her eyebrows. “I was put in a cell with an inmate who was known to be violent. She bit me and here, on my elbow.”

Palesa asked repeatedly for an HIV test following the assault, but she says she was never given one and was also not informed about her attacker’s HIV status.

Palesa has waited nearly three years for her trial to be completed. She was arrested in 2013 after fatally stabbing her boyfriend, who she says was trying to strangle her. Palesa says his death released her from an abusive relationship that saw her quit her job because she was locked inside her flat most days.

After her arrival at Pollsmoor, Palesa started writing a blog and drawing cartoons about prison life, but has been unable to publish them – until now.

“Hi all, this blog started as a way for me to give you out there a run-down of prison life. There are many injustices taking place at the department of correctional services and your hard-earned tax money is paying for them. An important role this blog can serve … is making the prison transparent to the public.”

© Palesa 2016

© Palesa 2016

The title of another blog entry reads: “Pollsmoor female unsentenced section is controlled by mafia-style ‘kitchen ladies’?”. It goes on to say: “Two things can buy you anything in this prison, and they control both: food and tobacco.”

The kitchen ladies, nicknamed “adjutants”, are female inmates tasked with running the prison kitchen. “They are correctional officers without keys who use the food in the kitchen to ‘buy’ whatever they want. The prison is their playground; they do as they please,” Palesa alleges.

Another way to survive, according to Palesa, is to find a “prison mother”. “In Pollsmoor you need a ‘tronk ma’, a female warder who ‘adopts’ you in exchange for deposits into their Shoprite accounts. These prison mothers then bring you food, medication and anything you need. But I refuse. These [correctional services] officials get a salary; why should I pay them?”

The tronk mas, Palesa says, don’t just demand money for favours: sometimes it becomes sexual when wardens initiate slanga, prison slang for a same-sex relationship.

© Palesa 2016

© Palesa 2016

Simone*, who was incarcerated in Pollsmoor in 2007 and 2008, chose to play slangawith a fellow inmate to survive. “It was beneficial because she gave me what I wanted.”

Simone says she struck up a relationship with the woman mainly as protection against the rampant violence in the women’s section. “There were many fights, mostly caused by jealousy over food, toiletries, tobacco. I got hit on the soles of my feet by wardens and I was bitten by another inmate.”

Melanie*, another former inmate who was imprisoned in 2010, recalls a practice called “toppers”: wardens would punish inmates by hitting the tops of their fingers with a broomstick.

Most of the female inmates interviewed in Hard Times, a 2012 research report on women prisoners in Pollsmoor produced by the University of Cape Town’s gender, health and justice unit, had experienced some form of physical or sexual abuse growing up.

Basing their findings on interviews with 53 inmates, the authors note that “the correctional system becomes an extension of the abusive domestic context, where the features of domestic violence are recreated through prison controls and other behaviours … replicating a de facto domestic violence relationship”.

Dirty cells and substandard sanitation, especially in the awaiting-trial section, also traumatise the women. “Toilets and showers were incredibly dirty, always blocked,” Melanie remembers.

‘Filthy and cramped’
Grace Nienaber is a slender, middle-aged woman dressed in the prison’s bright yellow remand uniform. She was convicted for fraud after awaiting trial for two and a half years, and was released several weeks ago after receiving a suspended sentence. “It’s filthy here,” she says. “And cramped. They have squeezed about 70 women into a cell that is meant for 30. People sleep on the floor, toilets don’t flush and forget about warm water.”

Poor sanitation and overcrowding has provided the perfect hotbed for the spread of communicable diseases in Pollsmoor, especially tuberculosis.

The Constitutional Court condemned conditions at the prison in 2012 when it ruled in favour of former inmate Dudley Lee, who had sued the government after becoming infected with tuberculosis in jail. The highest court in the land gave the correctional services department a slap on the wrist for not complying with a raft of domestic and international legislation, including standing orders on cell space, ventilation and access to medication.

Three years after that ruling, Constitutional Court Justice Edwin Cameron wrote a scathing report on the remand sections – male and female – following a visit in April last year. “Ninety-four women were crowded into a poorly aerated room. The mattresses were stinking. There was no working toilet, a clogged sink drain and only cold water … Sheets and blankets were infested with lice … [and] the cell was infested with cockroaches.”

He also signalled there was little to no access to medical staff and poorly ventilated and heavily overcrowded cells – an indication the department has not done much to uphold the Dudley Lee ruling.

Lawyers for Human Rights and Sonke Gender Justice are suing the department for what they say are subhuman conditions in the male remand section.

The high court in Cape Town recently opened the way for former Pollsmoor inmate Nassiera James to sue the department after she contracted tuberculosis in 2009. Legal damages claims usually lapse after three years, but the court ruled that James could not have reasonably known she had a claim because most inmates are unaware of their rights. Attorney Jonathan Cohen, who represented (the since deceased) Lee, is also James’s lawyer.

James, who was released from prison in December 2009, lives in a house with a small fenced-off yard on a crescent in Mitchells Plain. She meets me in her uniform and head scarf, her work outfit.

“The officials at Pollsmoor do not try to find out who has TB and who doesn’t. While I was inside, a woman died of TB. Shortly thereafter, I started feeling really ill and I was coughing blood. The prison hospital kept saying that my sputum tests all came back with a negative result.”

After an outside hospital finally diagnosed her with the pulmonary illness, she returned to Pollsmoor and was put back in a communal cell despite still being potentially infectious to fellow inmates.

“This means they do this to other inmates; keep them in a communal cell while they await their test results. They throw people together like a bunch of dogs.”

When James hears a child call out her name, she goes to the crossroads outside her house. A six-year-old boy runs towards her. “This one was born in Pollsmoor,” she says as she strokes his head. “My family took him home after seven days. Pregnant women are taken care of,” she adds.

Mothers and babies
Lerato*, an official working in the women’s section, agrees. “Several years ago, things improved when the department started a separate mother and baby unit and a crèche for women whose babies are born in prison. The children are allowed to stay for two years.”

Children who were born before their mothers were incarcerated often end up in a precarious situation. “One mother had a three-month-old baby at home and she complained that there wasn’t anyone taking care of it,” says Lerato. “I asked the social worker to look into it, but she said there was nothing she could do.”

The women interviewed for the Hard Times report describe being separated from their children as the most difficult aspect of prison life.

“It’s hard being without my kids … that’s why I would like to appeal, even if it’s only … for a less[er] sentence,” an inmate called Tokkie told the researchers through her tears.

Correctional services policy is brief on the issue of women inmates and their children. The White Paper on Corrections in South Africa only stipulates that women should be incarcerated close to their homes.

The shortage of medical staff in the prison also leads to dangerous situations, says Lerato. “We have one psychologist, one doctor and one dentist for the entire prison. Some HIV-positive women are not getting their [antiretrovirals] and inmates who I suspect have TB are not being seen to.”

Melissa*, a mother of two, says she was framed by a former boyfriend who was angry about the fact that she was leaving him. “I was at the airport with my son when custom officials called me. They found 10 kilo-grams of marijuana in my suitcase,” she recalls. Melissa was arrested and after a few days in police custody, she was brought to the awaiting-trial section of the women’s jail.

“It was sad: there were so many women there who couldn’t afford R200 bail. Some of them had only stolen bread. I was lucky; my parents paid for an expensive attorney and advocate, who found out my ex-boyfriend had phoned the airport and had provided customs officials with a detailed description of me. I was released immediately.”

Melissa also noticed the poor medical attention in the prison. “The smell in the place was unbelievable. There was a woman in there who was pregnant and emitting a horrible smell, of rotting flesh. They washed her, but the smell didn’t

go. We asked the wardens to call a doctor, because we suspected her baby had died, but no one came.

I don’t know what happened to that poor woman; I was afraid she might die.”

Melissa stayed in Pollsmoor for only a few days, but she says it affected her deeply. “It was the most traumatic experience of my life. I don’t know what I would have done if my parents hadn’t paid for the lawyers. I can’t bear to think of what it is like to be imprisoned there for longer.”

Nienaber does know what that is like. Shortly after she was brought to Pollsmoor, she found out she had skin cancer. “I did not receive any treatment here. At one point, I had open wounds on my body and I had to be admitted to Groote Schuur Hospital with septic shock. I nearly died.”

The department of correctional services declined to comment on the women’s allegations, despite repeated requests to do so.

* The women asked not to be named for fear of reprisals or because they feared they would lose their jobs.

Copyright Ruth Hopkins 2016

Ruth Hopkins works as an investigative journalist for the Wits Justice Project, where this article first appeared.

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Private prison operator accused of using drugs and electric shocks. By Ruth Hopkins

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What has gone so horribly wrong with South Africa’s police? By Ruth Hopkins

F&O Hopkins

© Ruth Hopkins 2013

Steven Mothao was walking back home from a piece job on August 10, 2010, through Fordsburg in Joburg. Out of nowhere, three police officers appeared and pushed him against a wall. While onlookers gawked, the police officers slammed Mothao into a police van. He was detained in a police cell for 22 hours. For the first 14, he wasn’t offered a glass of water. Then Mothao was out on the street again. The police officers never identified themselves, they did not have an arrest warrant, and they did not inform Mothao of the reasons for his arrest. He sued the Minister of Police for damages and was awarded R150 000 in March.

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RuthHopkins-FAOFacts and Opinions contributor Ruth Hopkins is a senior journalist with the Wits Justice Project in Johannesburg, South Africa. She wrote a book on trafficking in women in/to Europe, which was published in 2005 (Ik laat je nooit meer gaan, I will never let you go again), based on five years of research in Albania, Bulgaria, Ukraine and the Netherlands.

In addition to her journalistic work, Ruth set up and taught a human rights course at a journalism college in the Netherlands. Ruth was named print Legal Journalist of the Year by Webber Wentzel 2011 – 2014.

 

 

 

 

 

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When the Womb Is a Crime Scene

Alabama has turned hundreds of pregnant women into felons for using drugs — even when they’re legal and the kids turn out fine.

Debi Word, left, took up the care for her grandson Will Bishop when Will's mother Katie Darovitz, center, whom she considers her daughter in law, was arrested for chemically endangering Will in utero. Grant Blankenship for ProPublica, © 2015

Debi Word, left, took up the care for her grandson Will Bishop when Will’s mother Katie Darovitz, center, whom she considers her daughter in law, was arrested for chemically endangering Will in utero. Grant Blankenship for ProPublica, © 2015

by Nina Martin, ProPublica
September, 2015

Casey Shehi’s son James was born in August 2014, remarkably robust even though he was four weeks premature. But the maternity nurse at Gadsden Regional Medical Center seemed almost embarrassed, and as she took the baby from his exhausted mother’s arms, Shehi felt a prick of dread.

“She said they were going to have to take him back to the nursery to produce some urine, because I had a positive drug screen for benzodiazepines,” Shehi, 37, recalled one evening a few months ago at a café near her mother’s home. She hadn’t been sleeping well; her brown hair hung lank past her shoulders, and her eyes were rimmed with worry. “I said: ‘That can’t be true. Can you please check it again? Run the screen again.’ “

The nurse asked: Did she have a prescription for any form of benzo — Xanax or Klonopin or Ativan? No, Shehi insisted, there must be a mistake.

Then she remembered: the Valium.

One night a few weeks earlier, Shehi and her ex-husband got into a huge argument on the phone. She was in the late stages of what had been a difficult pregnancy; she was achy and bloated, and her ankles felt like they might explode. After the fight, she called her mother, Ann Sharpe, a retired teacher and guidance counselor who lived nearby. “She was really upset — ‘I’m miserable, I’m sick, I can’t sleep,’ ” Sharpe recalled. “I said, ‘Do you have something you can take?’ ” As Shehi later told investigators, she had swallowed half of one of her boyfriend’s Valiums to calm herself down.

Not long after, Shehi and her boyfriend and their various kids packed up the camper and drove 325 miles from Gadsden, in northeast Alabama, to the beach in Panama City, Florida, for one last vacation before the baby came. The weather was sweltering, the trailer — a grimy relic with an air conditioner that only worked when it wanted to — suffocating. Shehi was too keyed up to sleep, her 4-year-old son curled up beside her on the narrow bed. Finally, she reached for the other half of the tranquilizer.

As Shehi recounted the story, the maternity nurse told her, “Okay, okay.”

By that night, everything really did seem all right. Excited nurses woke Shehi and handed her the baby, swaddled in a light blanket. “They told me: ‘He’s good, he’s clean. You can have him now, no worries.’ ” Exposure to too much benzodiazepine during pregnancy can sometimes cause newborns to be fussy or floppy-limbed. But occasional, small doses of diazepam (the generic name for Valium) are considered safe. According to the lab report, James had nothing in his system. Shehi said the pediatrician reassured her, “Everything’s cool.”

The next day, Shehi and the baby went home, and someone from the Department of Human Resources, the state child welfare agency, paid a visit. In recent years, Alabama authorities have been aggressive about removing newborns from the custody of mothers who abuse drugs, typically placing a baby with a relative or foster family under a safety plan that can continue for months or years. The social worker listened to Shehi and Sharpe’s story and concluded that theirs wasn’t one of those situations. “She said: ‘I understand the pain you are in, and I understand what’s going on. I won’t take the baby away,’ ” Sharpe recalled.

But one morning a few weeks later, when Shehi was back at her job in a nursing home and the baby was with a sitter, investigators from the Etowah County Sheriff’s Office showed up at the front desk with a warrant. She had been charged with “knowingly, recklessly, or intentionally” causing her baby to be exposed to controlled substances in the womb — a felony punishable in her case by up to 10 years in prison. The investigators led her to an unmarked car, handcuffed her and took her to jail.

Shehi had run afoul of Alabama’s “chemical endangerment of a child” statute, the country’s toughest criminal law on prenatal drug use. Passed in 2006 as methamphetamine ravaged Alabama communities, the law targeted parents who turned their kitchens and garages into home-based drug labs, putting their children at peril.

Within months, prosecutors and courts began applying the law to women who exposed their embryo or fetus to controlled substances in utero. A woman can be charged with chemical endangerment from the earliest weeks of pregnancy, even if her baby is born perfectly healthy, even if her goal was to protect her baby from greater harm. The penalties are exceptionally stiff: one to 10 years in prison if her baby suffers no ill effects, 10 to 20 years if her baby shows signs of exposure or harm and 10 to 99 years if her baby dies.

For this story, ProPublica and AL.com filed multiple public information requests to identify the more than 1,800 women arrested under the chemical endangerment law, then sifted through court records to find the cases related to pregnancy. The data showed that at least 479 new and expecting mothers have been prosecuted across Alabama since 2006, or more than three times the number previously identified. Many others have been investigated in the chemical-endangerment version of stop-and-frisk, their lives turned upside down by an intrusive — and women’s advocates say, unconstitutional — dragnet of drug testing without their knowledge or, sometimes, their explicit consent. The goal of the law is to protect children by removing them from unsafe settings and mothers too impaired and unstable to provide proper care. Prosecutors contend the law has been the impetus for hundreds of women to get treatment and restart their lives, with prison as the price for those who choose not to or who fail.

Yet there’s nothing in the statute to distinguish between an addict who puts her baby at grave risk and a stressed-out single mom who takes a harmless dose of a friend’s anti-anxiety medication. There are no standards for law enforcement officials or judges to follow: Is the presence of drugs in the mother’s body cause for charges if the baby tests clean? What test results are appropriate for medical providers to report and when? Should a mother face charges even when she was using a prescription drug under a doctor’s supervision? Local prosecutors and courts have wide discretion.

Some of the most wrenching effects of the law can be seen in the area of parental rights. Chemical endangerment is considered a form of child abuse, and a woman accused of exposing her baby to drugs in utero is at risk of losing custody of all her children, not just her newborn.

In Shehi’s case, social workers had determined that James, the baby she had supposedly endangered, was fine and could remain in her care, court records show. But she had an open custody case involving her preschool-age son. After the arrest, the judge overseeing those arrangements issued an emergency order granting her ex-husband sole custody. There wasn’t even a hearing. “I was supposed to pick him up from school,” Shehi said,”and my lawyer saw the order and told me, ‘Don’t go.’ “

Abortion Politics Meet a Meth-Lab Law

The story of how Alabama’s chemical endangerment law became the most sweeping measure deployed against pregnant women in the U.S. during the last decade begins with methamphetamine. The drug arrived in the 1990s, and by the mid-2000s it was overwhelming law enforcement and social service agencies in rural, economically depressed areas in the north of the state and along the Florida border.

In Montgomery, lawmakers tried to play catch-up by targeting do-it-yourself manufacturing operations and cracking down on sales of over-the-counter cold medications used to produce the drug. Home-based labs were noxious and dangerous, with a tendency to catch fire or blow up — especially hazardous for kids. Barry Matson, who heads the Alabama District Attorneys Association’s drug abuse task force, recalled one memorable case: “We raided the house, and they were venting the gases through a kitchen into the baby’s playpen.”

The new chemical endangerment law didn’t stop at meth labs. Parents and other responsible adults could be arrested for exposing children to virtually any type of controlled substance or drug paraphernalia in all kinds of settings: a crack pipe on a coffee table, an open bottle of pills, marijuana smoke in a car.

As the Legislature tackled that problem, hospitals were reporting another: an increase in the number of scrawny, often premature newborns who showed signs of exposure to meth in the womb. Some had withdrawal symptoms, a condition known as neonatal abstinence syndrome. When the Alabama Department of Public Health randomly screened 500 pregnant women during routine prenatal visits at clinics around the state, 13 percent were positive for a controlled substance (mostly marijuana), a figure that implied at least 8,200 live births per year by users, the state’s Maternal Drug Task Force reported. Even that number was thought to be a significant underestimate.

Marshall County, at the southern edge of the Appalachians, was one of the areas hardest hit, so awash in addiction that its most prominent landmark was nicknamed Meth Mountain. Doctors and nurses were clamoring for action, said Steve Marshall, the district attorney there since 2001. “We started holding pow-wows … from a public health standpoint, a law enforcement standpoint, what was the best way to deter women from this behavior?”

Drug abuse in pregnancy is an extraordinarily difficult problem to treat; effective programs for poor, uninsured women were exceedingly scarce. With what felt like a crisis bearing down on them, Marshall and a few of his fellow prosecutors turned to the meth-lab law. Under the statute’s flexible language, they concluded, “a child” could be a fetus, and “an environment in which controlled substances are produced or distributed” could be a womb. In late 2006, they began charging mothers whose newborns tested positive for drugs — not just meth, but also cocaine, opioids and pot. Marshall’s goal wasn’t to throw women in prison, he said, but to use the threat of incarceration to force them into treatment. Mothers who were successful could eventually have the charges dismissed. “We wanted to find a mechanism to get mama clean, get kid healthy and hopefully encourage a reunification of the family,” he said.

“We have clearly used it [the chemical-endangerment statute] a little bit different than it was designed,” Marshall acknowledged. “That, in and of itself, doesn’t mean it’s wrong.”

It was an audacious legal experiment but not a novel idea. Since the “crack-baby” era of the 1980s, authorities in at least 44 other states have sought to hold women criminally accountable for drug use in pregnancy, according to the nonprofit National Advocates for Pregnant Women, often by repurposing statutes such as child abuse and drug distribution and trafficking laws meant for something else. But most experts thought arresting mothers was terrible public policy: It treated addiction as a crime rather than a disease; it discouraged the women most in need of prenatal care from seeking it; and it interrupted a mother’s bond with her baby when she was particularly vulnerable, making her more likely to relapse. “Did the war on drugs work? Do you have a reason to think a war on women using drugs during pregnancy is going to?” asked Donald Bross, a professor of pediatrics and family law at the University of Colorado School of Medicine. Only one state supreme court — South Carolina’s, in 1997 — ended up condoning the criminalization approach. In most states, drug use in pregnancy came to be seen as a matter best handled through the civil child welfare system: Removing a child seemed like punishment enough.

By the time the chemical-endangerment cases began winding their way through the Alabama courts in the late 2000s, though, the political and social landscape had transformed. Advocates for the rights of the unborn were on the ascendant. The personhood movement— which seeks to establish the embryo or fetus as fully human in as many legal and medical contexts as possible — had made significant inroads. The treatment of drug use in pregnancy as a crime against the fetus emerged as an important part of the strategy to dismantle Roe v. Wade, and the Alabama Supreme Court, possibly the most conservative high court in the country, proved especially receptive.

One justice in particular, a longtime anti-abortion warrior named Tom Parker, saw an opportunity to create a whole new jurisprudence of personhood that could be ammunition for abortion opponents in their push for another showdown at the U.S. Supreme Court. In decisions in 2013 and 2014 that were as much about abortion as drugs, Parker and his fellow justices ruled that the meth-lab statute could indeed be used to prosecute expectant and new mothers — not just from the time the fetus is viable (around 22 weeks) but from the earliest stages of pregnancy.

Attorney Rebecca Green Thomason, who represented Amanda Kimbrough, the Colbert County woman whose case became the basis for the 2013 decision, thinks abortion opponents have got it all wrong. Thomason is proudly conservative — “a right-wing crazy” is how she puts it — and unapologetically anti-abortion: “Based on what I do, it seems that women have abortions for not necessarily their own reasons. They are often coerced into it.” One of her chief criticisms of the chemical endangerment law is that it punishes mothers in crisis who do their best to carry their babies to term; a smart woman, Thomason said, won’t even try. “From my right-wing perspective,” she said, “we are forcing women to have abortions.”

One Law, ‘Vastly Different’ Results

In 2013, a couple of weeks after the Alabama Supreme Court’s first ruling, Lynn Paltrow, the NAPW’s executive director, and Jeanne Flavin, a professor of sociology at Fordham University, published an extensive study on arrests and “forced interventions” against pregnant women in the 30 years following Roe. It was an eye-opening analysis of how the relentless battles to restrict abortion have resulted in the increasingly onerous regulation of pregnancy itself. The report compiled 413 examples across the United States, mostly arrests of drug-using mothers, but other types of detentions and prosecutions as well — a figure that struck many people as shocking. The number of Alabama chemical-endangerment prosecutions in the ProPublica/AL.com analysis — almost certainly an undercount — dwarfs anything in that report. As a new drug panic over opiates and “oxytots” spreads through the South and Midwest, and other states contemplate their own chemical endangerment-like statutes (Tennessee passed one last year; this past spring, eight legislatures introduced bills), the Alabama example holds lessons about the kinds of inequities and overreach that can result, said NAPW’s director of legal advocacy, Sara Ainsworth. “Alabama isn’t an aberration,” she said. “It’s a bellwether.”

In the NAPW report, arrests disproportionately affected women of color; in Alabama, 75 percent of chemical-endangerment defendants who were pregnant or new moms have been white, largely reflecting the fact that enforcement has been strongest in majority-white counties. Alabama women, like the ones in the NAPW report, are also overwhelmingly poor: only 11 percent were able to afford their own lawyers.

Most striking are the enormous disparities in the way prosecutors in the state’s 67 counties have applied the law. The normal tendency toward insularity — “each county is its own little fiefdom,” said John Gross, a professor and director of the criminal defense clinic at the University of Alabama School of Law in Tuscaloosa — is magnified by huge workloads, meager budgets, archaic technology and divergent priorities. “You get vastly different results in terms of how the cases are prosecuted.”

In Birmingham, for example, a city of 212,000 with urban-level drug problems, authorities have charged only two women with chemical endangerment of an unborn child in nine years. By contrast, in suburban Shelby County, southwest of the city, they are so aggressive that last fall they arrested a woman for smoking pot during pregnancy despite having no proof that she was actually pregnant (she wasn’t). In Marshall County, mothers whose newborns test positive for controlled substances routinely face bail of $250,000 to $500,000. Last year, a new mother with no prior drug arrests had bail set at $300,000 for exposing her fetus to pot. Across the road in Morgan County, bails rarely exceed $2,500.

In most counties, authorities use the threat of jail to push women into drug court or pretrial diversion. Calhoun County, near the Georgia border, diverts pregnant women into a treatment program in Birmingham, too. But a mother who gives birth to a drug-exposed baby — even a woman with no prior arrests — is invariably offered a standard plea deal of five to 10 years in the notorious Julia Tutwiler Prison for Women. “It’s not a victimless crime,” said Jennifer Weems, a former prosecutor who oversaw the county’s chemical endangerment cases for years. “When children are born positive and addicted to drugs, then we treat it like [any other] crime against a child.”

Matson, of the Alabama D.A.’s association, points out that counties handle all kinds of cases differently, not just chemical endangerment prosecutions. He doesn’t think there’s anything wrong with this: “You have different populations, different expectations, different priorities,” he said. “I think that the disparity in each county is them trying to get it right.”

But critics such as the NAPW’s Ainsworth argue that the lack of consistency, amplified by abortion politics, has become a hallmark of the law. For example, this summer, in Lauderdale County, in the far northwest corner of the state, the district attorney sought to prevent a woman being held in the county jail (“Jane Doe”) from terminating her pregnancy, arguing that because she had chemically endangered her fetus, she should be stripped of her parental rights to it. The D.A. wasn’t engaging in “some kind of pro-life thing,” he maintained, but merely following the law. According to the high court’s chemical-endangerment rulings, he said, “It is the policy of the state of Alabama to protect unborn and born children.” The American Civil Liberties Union sued on the woman’s behalf, but she finally changed her mind and decided to have the baby. Prosecutors and courts “arbitrarily twisted this statute to do something that the Legislature did not intend,” Ainsworth said. “What’s so pernicious about this law is that it is completely based on discretion, at every level of the system. It just breeds discrimination.”

The disparities begin in doctors’ offices and maternity wards. In some parts of Alabama, drug screening of pregnant women, new mothers and infants has become almost universal; in others, testing occurs on a case-by-case basis. There is no state or federal law governing such testing or specifying the type of consent women must give. Hospitals are left to decide how to proceed.

Alabama law is clearer on what medical professionals are supposed to do if a new mother or baby tests positive: report them to child welfare authorities, who then are required to report them to police. Once that happens, women and their families are subject to investigations by the Department of Human Resources and law enforcement officials that can end with the temporary or permanent loss of their parental rights, or arrest, or both. Because a child is involved, the investigations are mostly confidential. They can also be highly subjective, influenced by small-town politics, family squabbles, class and gender biases, and personal beliefs about drug use and how children ought to be raised.

Casey Shehi’s case is one example of how local differences can play out. In Etowah County, where she lives, law enforcement officials have drawn what they call “a line in the sand,” vowing to aggressively pursue all chemical-endangerment cases, starting from pregnancy (“You will be arrested,” Sheriff Todd Entrekin declared at a news conference in 2013). But if Shehi had given birth just over the border in Marshall County, authorities wouldn’t have bothered. Fearful of discouraging prenatal care, they don’t arrest pregnant women, and “if mom tests positive, that doesn’t really matter,” said D.A. Marshall. “The significant factor for us is, does the baby test positive?” If not, it likely means a prescription drug was not being abused, he said. “A therapeutic dose is much less likely to ever show up in the system of the child.”

Even within the same jurisdiction, broad discretion can lead to very different outcomes, as shown by two chemical endangerment cases detailed in Calhoun County court files. (The women didn’t respond to phone calls and emails, so we are not using their names.)

The first case involved a 36-year-old African-American woman who lived on the outskirts of Anniston, the county’s largest town, and had a daughter she was putting through college. The woman had never been in trouble with the law before, according to court records, but in 2012 she gave birth to a healthy son who tested positive for cocaine. Child welfare authorities gave temporary custody to her mother, allowing the woman to stay involved in her baby’s care while she got sober.

Court records show that she used her time well, enrolling in a parenting class and a substance abuse program (“even voluntarily completing units throughout Christmas despite the death of my only grandmother,” she wrote). She continued to work, making plans to launch a publishing company and take online college courses. In another part of Alabama, authorities might have seen her as a success story. But in Calhoun County, where prosecutors have taken a harder line, she was arrested six months after her son’s birth and eventually sentenced to five years in Tutwiler.

According to District Attorney Brian McVeigh, the practice in Calhoun has been to encourage mothers accused of chemical endangerment to petition a judge for leniency if they’re unhappy with how they’ve been dealt with. That’s what the woman tried to do. Her case file contains letter after letter, neatly handwritten on lined paper, asking a judge for mercy. Her first request was to reduce the $30,000 cash-only bail that is common for chemical endangerment cases in the county. She wasn’t a flight risk, she wrote: “My family is very important to me … This is the first time I’ve ever been away from them.” She assured the judge, “Your honor, I’m not looking to deny responsibility in this very upsetting matter. Sir, I would just like the chance to continue to work on the positive progress I’m making in my life.” The judge’s one-sentence response: “BOND REDUCTION REQUEST … is hereby DENIED.”

Next, she wrote asking for permission to enter a well-regarded substance-abuse program near her home. The judge denied her again, saying any request needed to come from her public defender, whom the woman hadn’t been able to reach. Eight months later she wrote once more, hoping to get into an early release program known as Community Corrections that was designed to reduce prison overcrowding. Three days before Thanksgiving, the judge ruled again: “DENIED.”

Around the same time, court records show, another Calhoun County woman gave birth to a drug-exposed baby boy; she, too, was charged with chemical endangerment. Unlike the first woman, she had two prior felony convictions, which doubled her prison sentence to 10 years. A few months after she pleaded guilty, she filed a request — a five-paragraph form letter — asking to be transferred from Tutwiler to Community Corrections so that she could “resume a normal pattern of life.” Once again, justice moved quickly. But the second woman had drawn a get-out-of-jail card. Two days after petitioning the court for leniency, she was on her way home.

‘It’s Simply to Save a Life’

For much of the last century, Etowah County, in the iron ore-rich foothills of north Alabama, was one of state’s most important industrial centers. These days, it may be best known as the starting point of the World’s Longest Garage Sale, which begins in the front yards of Gadsden in August and continues for four days and 690 miles along Interstate 127 before petering out somewhere in Michigan. The area’s once-booming factories have dwindled to a Goodyear tire plant and some chicken processors. The population is significantly whiter than in other parts of Alabama, but also less well-off. Residents are half as likely to have graduated from a four-year college than in the U.S. as a whole.

In a region caught between stasis and decline, cheap self-medication found a ready market. Etowah avoided the worst of the crack epidemic, Jimmie Harp Jr., who served as district attorney for a decade until his death from cancer in July, said in an interview last year. “Then we woke up one day and crystal meth came to town. And crystal meth was unlike anything I’d ever seen.” The OxyContin wave hit even harder. By 2012, Alabama had become the No. 1 painkiller-prescribing state, according to the Centers for Disease Control and Prevention. More recently, a crackdown on opioids and benzodiazepines led to a surge in heroin use. “You start taking a cocktail of different drugs, anti-anxieties and antidepressants, and then the baby has some serious problems,” Harp said. “That brings a whole new dynamic for law enforcement.”

Etowah County shares a border with Marshall County and faces many of the same challenges. But until 2013, Etowah authorities almost never arrested women for chemical endangerment of unborn children. Harp wasn’t convinced that throwing women in jail, even to force them into treatment, was the right approach. “You had terrible [newspaper] pieces about how prosecutions invaded a woman’s right to do this and that,” he said. “My goal is certainly not to infringe on the constitutional rights of anybody. It’s simply to save a life.”

Over the past two years, however, authorities arrested at least 31 new or expectant mothers under the chemical endangerment statute, more than any other county. The change in policy shows how difficult it can be for elected officials in some areas to exercise discretion, whatever their misgivings about the law. That may be especially true in Etowah, the political birthplace of Alabama Supreme Court Chief Justice Roy Moore, scourge of gay marriage and author of some of the chemical endangerment rulings’ most forceful language on rights of the unborn. Harp and other officials announced their new zero-tolerance approach four months after the court’s 2013 ruling. “Kids are innocent,” Harp said last year. “They have no way to protect themselves.”

But it was Sheriff Entrekin who emerged as the policy’s most visible and forceful advocate, including in dealings with the medical community.

Some Etowah health care providers were pleased at first to see law enforcement take an interest in the prenatal drug problem, said Chris Retan, executive director of the Aletheia House treatment program in Birmingham. Yet when they realized the response might be to put pregnant women behind bars, “The medical people said, ‘We’re just not telling
you’ ” the drug-test results, Retan recalled. “The sheriff said, ‘You will too tell me.’ ” (Gadsden Regional declined to answer questions about drug-testing policies. “We do not publicly disclose such data,” a spokeswoman said.)

This spring, Entrekin led a push to amend the chemical-endangerment law to establish deadlines for medical providers to report suspected drug use by mothers. He proposed two hours — in some cases, even before test results were back from the lab. “We have had a little bit of reluctance to notify the authorities,” Entrekin said in an interview after a legislative hearing in May. “That’s why we’re trying to give them [providers] cover that makes it legal. They want to do it, and they want to be legal.” But even the Etowah lawmaker who sponsored the bill decided it went too far, and the legislation died in committee.

Etowah’s zero-tolerance policy isn’t meant to be punitive, Entrekin insisted to lawmakers. The county has an agreement to send some pregnant women to Aletheia House, where Medicaid pays for months of intensive treatment and new mothers get to keep their babies with them. “Medical professionals now understand that these women receive top-rated health care,” Entrekin wrote to ProPublica and AL.com in a seven-page response to questions about his office’s policies. Pregnant women who take controlled substances under a doctors’ care don’t face arrest, he said, but those who use even a small amount of an unprescribed drug do.

That’s just the law, Entrekin wrote. “If [an] offense is ignored,” he asserted, “sheriff’s deputies have failed to uphold their sworn oath of office.”

‘How could you do that to your baby?’

Stop at almost any gas station or minimart in rural Alabama and you will find, stocked amid the racks of energy drinks and chips, copies of a weekly tabloid called “Just Busted.” Garish and crude, the paper consists of hundreds of police mug shots organized by county and alleged crime (“Sex Offenders,” “Drunk Tank”), interspersed with ads for bondsmen and defense lawyers. In a recent issue, three-quarters of the suspects were men, but three-quarters of those singled out on the cover were women.

Mug shots from the Etowah sheriff’s office take up an entire page. They end up on Birmingham TV and all over the Internet. Casey Shehi’s was particularly unflattering, her eyes puffy from crying, her mouth a thin grimace of disbelief. Gadsden, population 36,500, is a decent-size town by Alabama standards, but to Shehi, it has always felt like “a tiny fishbowl.” After her arrest, old acquaintances would pretend they didn’t see her at the grocery store or turn away in embarrassment. Her baby was in the same day care as the sheriff’s investigator overseeing her case. “I feel like everywhere I go, people just kind of look at me and shame me like I’m a monster, like, ‘How could you do that to your baby?’ “

Shehi seemed like the last person anyone would expect to get caught up in the chemical-endangerment law. She grew up middle class and graduated from Auburn University with a major in communications and a minor in wanderlust. A dancer and theater geek with a classically trained voice, she was pretty enough to compete for Miss Alabama in college (for her talent, she sang an aria from “Die Fledermaus”; for her special issue, she chose anorexia). In her 20s she worked as a performer on cruise ships in Hawaii and as a TV reporter in south Alabama. She returned to Gadsden in the mid-2000s, married into a well-connected local family, and had her older child — “my first true love” and “my rock,” she called him — in 2010.

When her marriage imploded a couple of years later, so did her world. She started dating James’s father, a high school flame with a couple of kids; her discovery that she was pregnant sent her into hyper-vigilant mode: no smoking or drinking, certainly no illicit drugs. Still, the circumstances were less than ideal. Her boyfriend had a “horrible temper,” she said, and sometimes the stress overwhelmed her.

Shehi had pregnancy-related hypertension and was in and out of Gadsden Regional with early contractions. To stop her from giving birth too soon, doctors pumped her full of medications, including painkillers, she said. That was one reason she didn’t worry about the Valium. Her mother was more concerned about Shehi’s emotional state. “I was thinking, if she can’t get herself calmed down, she’s going to miscarry this child.”

Shehi saved a medical report from one of those prenatal hospitalizations. It shows no traces of any controlled substances in her system. Except for the benzodiazepine, nothing turned up in her drug tests when she gave birth, either.

The arrest left Shehi depressed and mired in debt. Between her $10,000 bond and lawyers for the chemical endangerment charge and custody case, there were a lot of bills. Every couple of weeks, she had to take a drug test at $75 a pop, money she could barely afford. Her attorney was sure that the charges would be dropped. “He told me, just sit tight.” But she couldn’t — as long as the case was pending, she’d never regain custody rights to her older son. Months passed with no word from the D.A.’s office. “It’s like you get pushed to the bottom — ‘We’re going to take care of everything but your case because it’s not important.’ “

In the interim, her situation with James’ father dangerously deteriorated. At some point, he became abusive, Shehi said in court documents. She grabbed her 3-month-old son, fled to her mother’s house and took out a restraining order.

In court documents, the ex-boyfriend denied the abuse allegations and countered by demanding full custody of James. Shehi, he said, was “not fit to have the care, custody and control” of their son. As evidence, he cited her arrest for chemical endangerment. Then, in April, he was arrested and charged with violating the protective order and carrying a concealed gun, according to court records. His bail for allegedly having a dangerous weapon around Shehi and his baby son: $1,000 — one-tenth of Shehi’s bail for swallowing two halves of a tranquilizer.

Under a Doctor’s Care, Yet Charged

Describing the threat from drug abuse during pregnancy, Jimmie Harp recalled an anecdote that’s become part of Alabama law enforcement lore. “You [have] mamas … smoking meth on the way to the hospital,” he said in an interview last year. But the chemical endangerment prosecutions reviewed by ProPublica and AL.com suggest a far more nuanced picture.

The most common drug identified in the court records wasn’t meth but marijuana, followed by cocaine (meth was No. 3). About 20 percent of the cases involved only pot. Although most of the women had a history of drug use and other arrests, about one-quarter appeared to have no prior adult criminal record in searches of Alabama’s court database. The types of harm alleged by prosecutors didn’t fit the stereotypes, either. In eight out of 10 cases, women were charged with Class C felonies, the lowest category that applies when there is only exposure but not physical harm.

No. 4 on the list of substances: opioid painkillers. Here the chemical endangerment law presents especially thorny issues for pregnant women. Long-term prenatal exposure to opioids can lead to neonatal abstinence syndrome, or NAS, a cluster of withdrawal symptoms ranging from fussiness to seizures. As opioid addiction has spread nationwide, so has NAS: The incidence nearly doubled from 2009 to 2012 to 5.8 cases per 1,000 births. The region including Alabama, Mississippi, Tennessee and Kentucky has the highest rate, with 16.2 cases per 1,000.

But reducing a mother’s dosage of opiates is perilous. In the first trimester, it can cause miscarriage; in the third trimester, premature labor or stillbirth. NAS, on the other hand, is highly treatable, said Dr. Stephen Patrick, assistant professor of pediatrics at Vanderbilt University medical school and a leading researcher in the field. “These babies do not appear to be devastated by any means,” Patrick said.

Keeping a woman on opioids during pregnancy, ideally methadone, is thus the standard of care. But a lot of people, including some law enforcement officials, view methadone as no different from other harmful substances. Babies born with NAS in Alabama frequently trigger child-welfare investigations that may result in a mother losing custody. Sometimes, even when a mother is using opioids under a doctor’s care, NAS leads to a chemical endangerment charge.

That’s what happened to Hanna Ballenger, 34, who lives in Cullman County, west of Etowah, in 2014. Ballenger said her problems began with a double injury to the head soon after high school. She was helping her stepfather paint the house when she hit her head hard on a table; the next day, she bashed her head on a car door. Specialists in Birmingham eventually diagnosed a brain fluid leak.

After repeatedly trying to patch it, Ballenger’s neurologists mostly managed her condition with painkillers. Not only were the drugs highly addictive, they were also prohibitively costly for a cashier earning minimum wage at a job with no health insurance. Eventually, Ballenger said, her doctors turned to methadone, which cost only about $40 a month. “It was never something that made me high,” she said. “It just made me function like I was normal instead of in constant pain. No one could ever tell I was taking anything.”

According to court records, Ballenger had other substance abuse problems over the years; she got married, had a daughter, divorced and lost custody to her ex. In 2011, she met a man at church named Zach Neely and fell in love; he, too, had drug problems that he was trying to overcome. In early 2012, Ballenger was overjoyed to discover that she was pregnant. But she was also “freaking out” that the methadone might hurt the baby.

In the end, Ballenger and her doctors tried to find a middle ground. They gradually cut her methadone in half by the end of her pregnancy. When her son, Case, was born in October 2012, he was five weeks premature but seemed robust. Then, while breastfeeding at the hospital, he turned blue. Case was taken to the neonatal intensive care unit at Trinity Medical Center in Birmingham, but six weeks later was plump, beautiful, thriving — a poster child for NAS survivors.

Ballenger and Neely took their son home, expecting to settle into new lives. That afternoon, though, social workers showed up and took Case, giving him to relatives of Neely’s who decided they didn’t want to give him back. The last time Ballenger saw him was in December 2013. “My son doesn’t even know who I am,” she said through tears in her lawyer’s office earlier this year. “He knows I’m his mother, but he’s so little he doesn’t know what that means.”

Then, out of the blue, a year and a half after Case’s birth, Ballenger was arrested for chemical endangerment. Because Case had NAS, Ballenger was facing 20 years in prison. (Cullman County District Attorney C. Wilson Blaylock didn’t respond to questions about the case, which is pending.)

“I got charged for being on methadone, and he’s healthy,” Ballenger said bitterly. “But if I had come off the methadone cold turkey, and he had died, they would have arrested me for killing him. I would have gotten charged either way.”

A Mother on Suicide Watch

Nearly all mothers charged with chemical endangerment end up pleading guilty. It’s a condition for a pretrial diversion or drug court, with the promise of a dismissal if a woman gets clean and stays out of trouble. “It’s a path of almost certain safety,” said Morgan County attorney Brian White — irresistible even if a woman believes she did nothing wrong.

But for poor women especially, pleas often come with unanticipated costs. Alabamians are strongly tax-averse, and local governments have come to depend on criminal justice fees and fines to stay afloat. Defendants are charged for virtually everything, including diversion programs and court-appointed lawyers. In Russell County, on the Georgia border, it’s not unusual for a chemical endangerment defendant to face a $2,500 fine on top of all the other fees.

Debi Word didn’t have that kind of money, but it wasn’t the only reason she wanted her daughter-in-law, Katie Darovitz, to fight her chemical endangerment charge. At 25, Darovitz has severe epilepsy. She can’t drive or hold a job, and she gets by on disability payments from Social Security — income she could not risk losing. Pleading into diversion would leave a stain on her record, with uncertain repercussions down the line, including incarceration if she flunked. “Once you get in the system, people are watching you all the time,” Word said. “If you’re not perfect, if you mess up, it can just start to snowball.”

Darovitz’s chemical endangerment problems began with her epilepsy. A couple years ago, she had a miscarriage and worried that her medications — Keppra and Zarontin — might have been to blame. Some anti-seizure drugs have been associated with birth defects, and after Darovitz got pregnant again last year, her seizures became more frequent. Her neurologist said she needed to increase her medication, and the obstetrician agreed, telling her: “You could fall. You could die.” But the doctors couldn’t rule out increased risks for the baby.

 Katie Darovitz (center) with Debi Word and 9-month-old Will. Darovitz’s decision to substitute marijuana for prescription epilepsy drugs “was the lesser of two evils,” Word said. “If the medicine I was taking was known to cause birth defects, I would have done the same thing.” (Grant Blankenship for ProPublica)

“I didn’t know what to do,” Darovitz said. After some research, she decided to take a chance on marijuana. Cannabidiol, a nonpsychoactive ingredient in pot, has shown anticonvulsant effects in animal studies. Some researchers think it has promise for treating childhood epilepsy. Though its usefulness for adult seizures is less clear, it hasn’t been linked to birth defects. Word said smoking marijuana seemed to work — Darovitz’s convulsions largely stopped.

Her son Will was born last Christmas Day, his normal health the only gift that mattered to his anxious family. But a drug test detected marijuana in Will and his mother. Darovitz was arrested and hauled off to the Russell County jail in Phenix City, where she was so distraught that she ended up on suicide watch, Word said. Darovitz had postpartum bleeding and was lactating, yet went days without soap or a blanket, she told her family. It took a week for them to scrape together a $7,500 property bond; by then Darovitz was close to catatonic.

Darovitz had never been in trouble before, and Word’s family believed that if she could tell her story in court, she could beat the charge. An attorney they found in Birmingham agreed, but after taking $2,000 he suggested a protracted battle was beyond their means and stopped returning their calls, Word said. (The lawyer did not answer calls or emails for comment.)

Then, Word’s fears about the system came to pass. The family decided to be proactive and enroll Darovitz in a drug-counseling and mental health program used by the Russell County court. It turned out to be a bad idea. Darovitz’s childhood had been “a horror story” of abuse, Word said. “The counseling brought up all these issues about her history that she just wasn’t ready to deal with.” Darovitz started missing appointments and soon was considered “noncompliant.” She slipped into depression and was again on suicide watch this summer, Word said.

In March, Word was granted full custody of Will. But as of mid-September, there was still no word about Darovitz’s case. To Word, it was hard not to see the delay as punishment in itself.

“Their attitude is, ‘Oh, well, you did this, and this is what you get,” Word said. “People around here are always talking about ‘protecting the unborn child,’ ” she said. “Well, that’s exactly was Katie was trying to do.”

Cleared, But Forgotten

When Casey Shehi got the news that her case would be dismissed, it came in dribs and drabs.

The first hint was a word of encouragement from the investigator, whose daughter was in the same day care as James. In mid-May the district attorney, Jimmie Harp, sent a note to Shehi’s lawyer saying he would help out: “Glad she is doing good.” A couple of weeks later, she was told the case would be “no billed” by the grand jury, meaning no indictment. But there was nothing definitive until mid-June, and even then no one at the court bothered to inform Shehi or her lawyer. The court’s electronic system didn’t fully reflect the decision, either.

So Shehi went to the D.A.’s office and got a formal letter stating that the case was dead. Even that felt anti-climactic: “I just kind of expected something more than a letter, I guess.” There was too much tumult to celebrate, much of it centering on James’ father. Things came to a head in a mid-August confrontation, when the two tussled over their screaming son in an empty lot next to her ex-boyfriend’s property. Shehi grabbed James and flagged down two passers-by, who gave them a lift to the local police station.

For Shehi, the incident became the moment when her life pivoted back on course. For 12 months, she had tried to live down her arrest while working full-time and doing her best to regain parental rights to her older son. She had buried her rage and incurred enormous bills. She knew that taking the Valium had not had any effect on James — it would be hard to imagine a healthier, happier baby than her burly, blue-eyed son. But the chemical endangerment case had cut to the core of who she was. “It made me feel like a horrible mother,” she said. “It made me doubt myself in every way.”

Then, that day in the lot, Shehi had rescued her baby. They were going to be OK.

The next week, Shehi’s lawyer persuaded a judge to award her full custody of James. Her legal fight for her older son has been put on hold, but she sees him all the time. She also has been taking her clearance letter around town, trying to make things right.

One of her first stops was the Etowah County Sheriff’s Office, where she asked to have her mug shot removed from the website. After everything that had happened, she wasn’t sure what to expect, but she was pleasantly surprised: “They took it right down.”

Creative Commons

Like this story? Read Nina Martin’s story about Alabama Supreme Court Judge Tom Parker and his activism on reproductive rights. This story includes reporting from AL.com’s Amy Yurkanin. Read her story on opioids and neonatal abstinence syndrome in Alabama here.

 

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South African prison inmate ‘tortured to death’

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Several inmates incarcerated in Mangaung prison have died under suspicious circumstances.

By Ruth Hopkins, Wits Justice Project 
September, 2015 

On a cold winter day in 2005, inmate Isaac Nelani asked wardens at South Africa’s Mangaung prison, run by British security firm G4S, for an extra blanket to keep him warm. The prison walls emitted a chill that crept into his joints and bones. Nelani, a 47-year old inmate at Mangaung prison, was HIV-positive, which made him more susceptible to the cold.

Other than his insistence on an extra blanket that day, not much else is known about Nelani. Inmates who spoke to the Wits Justice Project (WJP), say he was a gentle guy, others claim he was emotionally unstable. Why he had been placed in a cell in Mangaung’s notorious “Broadway” isolation section remains unknown. Nelani himself is no longer around to connect the dots, because he died under suspicious circumstances on that cold day, May 18 2005. G4S officials registered the death as suicide in their internal records, which the WJP has in its possession. 

Several inmates incarcerated in Mangaung prison have died under suspicious circumstances. Documents that were recently provided to the WJP and eyewitness accounts contain shocking allegations that inmates were tortured before they died, while the prison registered their deaths as either “natural” or “suicide”. More worryingly, the Department of Correctional Services (DCS) is aware that G4S’ recordkeeping of deaths in custody is not up to standard and that deaths through torture may go undetected. Despite that knowledge, it has not held G4S accountable. DCS has instituted a task team to look into unnatural deaths in the prison, but the investigations have yet to be finalised. 

Recently, Nelani’s death was part of a DCS investigation into allegations of abuse at the Bloemfontein prison. The investigation was initiated two years ago, after the WJP revealed the results of a year-long probe into the prison. It uncovered a practice, since the inception of the prison in 2000, of alleged routine assaults, electroshocking, alleged forced injections with anti-psychotic drugs and lengthy isolation of inmates in the prison. The allegations were based on interviews with approximately 70 inmates and dozens of wardens, governmental reports and audio and video footage of the forced injections and the electroshocking. It revealed a hellhole of a prison.

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An investigation was initiated in 2013, after the WJP revealed the results of a year-long probe into the prison. It uncovered practices since 2000 of alleged routine assaults, electroshocking, alleged forced injections with anti-psychotic drugs and lengthy isolation of inmates in the prison. The photos with this story were captured in 2012 from a video obtained by the Wits Justice Project,

Then minister of correctional services, Sbu Ndebele, promised to “leave no stone unturned”. The 30 days he allocated for the report to be finalised have long expired; nearly two years after the expose, DCS has still not finalised or published the results of its investigation.

The DCS took over Mangaung prison in October 2013, when G4S lost control of the prison, amid a spate of stabbings and hostage-takings, which followed on the heels of a protracted strike and subsequent dismissal of 330 employees: about two-thirds of the entire work force. A year ago, the department handed back the prison to G4S.

The WJP has seen the part of the draft DCS report that refers to Nelani’s death. “In respect of death (sic.) of Isaac Nelani, a discrepancy exists between MCC [Mangaung Correctional Centre – ed.] and pathologist records, MCC records the death as a suicide, whilst pathologist records it as a head wound.” DCS, however, denies such a report existed. “DCS is not aware of any reference to a head wound with regard to Isaac Nelani.”

In 2010, a magistrate’s inquest into Isaac Nelani’s death revealed further worrying findings. It starts with the witness statements of the warders on duty that day. Sello Johannes Moleleke, the supervisor, stated that on May 18 2005 around 5pm, he checked up on all inmates in Broadway, by looking through the feeding hole. When he came to Nelani’s cell door, he saw that he was sitting next to the door “with a piece of clothing around his neck”. Moleleke’s colleague Vuyo David then called the prison hospital and two nurses were dispatched. When they arrived at the scene, they tried to resuscitate Nelani, but to no avail. He was pronounced dead. 

And this is where the plot thickens. South African Police (SAPS) arrived at the scene and they took pictures of Nelani’s corpse, his cell and of the unit Broadway. Then the body was transferred to the morgue. The next day, pathologist Robert Gene Book performed an autopsy on Nelani, as is required by law if a death is considered unnatural.

Brook qualifies the manner of death as “undetermined, but suspicious”. He does not mention a head wound, but does determine the inmate’s cause of death was “consistent with either hanging by the neck or strangulation”. What raised the pathologist’s suspicion was the bruising on Nelani’s heart. Bruising of the heart happens when there is huge impact, like a severe assault, a car accident, a fall to the ground from a great height, or when cardio pulmonary resuscitation (CPR) takes place. A nurse did perform CPR on Nelani, but the location of the bruising on the heart apparently suggests it was not caused by the resuscitation attempt. “(..) the distribution of the said bruising (…) only on the posterior of the heart, adjacent the spine, lead me to suspect that blunt force had been applied to the heart”. 

In concluding the report, Brooks writes that none of the pieces of clothing that Nelani allegedly hanged himself by, were presented to him. The police had told him the inmate had hanged himself by a leather jacket, which he found to be completely inconsistent with the ligature marks on Nelani’s neck, with a piece of clothing that is not permitted in prison. “In civilized countries throughout the world, the Forensic Pathologist is called to scenes of death in custody; it never happens here in Bloemfontein. Never.” Brooks writes. 

So what did happen on May 18 2005 in Broadway? Four eyewitnesses told the WJP a chilling tale of a cover up.

Inmate Papi Maruping was locked up in a cell on the upper level of Broadway, facing the cell where the warders brought Nelani, a cell commonly referred to as the “dark room”. He and two other inmates say that the flap on the feeding hatches in the cell door was kept open, so they could see out through a slit. “Nelani was complaining about the cold and had demanded an extra blanket. He was given one, but when Maluleke came on duty, he took it from him. Nelani protested loudly and Maluleke called the EST (Emergency Security Team, also known as the Ninjas).” According to Maruping, six EST members, armed with electrically charged shields, came to the unit around one o’clock in the afternoon. “They took him out of his cell and twisted his arms behind his back. Nelani complained and asked them: ‘is this how you operate?’. They ordered him to strip and to take a cold shower, then he had to get dressed again and then they took him to the dark room.” 

The dark room was a windowless cell with thick walls that ensured it was a sound proof space. This is where an EST member, interviewed by BBC television on October 28 2013, admitted to bringing inmates to torture them. “Yeah we stripped them naked and we throw with water so the electricity can work nicely. I will shock him until he tells the truth that I want even if it’s a lie,” the Ninja said before camera. Around the same time, a further 13 dismissed EST members confirmed to the WJP that the dark room was used for this purpose.

“When they tried to take him to the dark room, he resisted. The EST guys surrounded him outside the cell, cuffed him and started to shock him with their shields. They kicked him too. Nelani was bleeding from the mouth and screaming, we could all hear him.” According to Maruping, Nelani was lying face down on the floor of the cell when he saw a doctor enter. “A doctor went into the cell and injected Nelani in his neck. Then they closed the cell door.”

Mxolisi Ndaba was also positioned on the upper floor of the isolation unit and followed what happened in Broadway, through the slit of the opened feeding hatch. “I heard Nelani scream, as the ninjas electroshocked him,” he recounts. “Then they dragged him into the dark room and the door closed. We all thought he was attacked in there.”

Ouba Mabalane was in the cell next to Ndaba. “They tortured him to death. I could hear him screaming. After he died, EST members hung up clothes to make it look like he committed suicide.”

An inmate tasked with cleaning the cells found Nelani dead when he served dinner around 5pm. Strangely, his statement was not included in the magistrate’s inquest and none of the warders who did issue statements mention him. That inmate has since been released on parole and he met with the WJP last year. He indicated that he wanted to remain anonymous, for fear of his parole being revoked. According to him, officials from G4S instructed him to state that Nelani died as a result of suicide, whereas he claims to have written to the DCS controller (a governmental official working at the prison who is supposed to oversee legal compliance of the company) that Nelani died as a result of a beating.

Maruping witnessed what might be the most chilling part of this tragic tale. “He opened the door to the cell and started shaking Nelani. Nelani was lying face down, with his hands cuffed behind his back. The inmate notified Maluleke who then made a phone call. Not much later, several officials entered the section. They went into the interview room in the corner of Broadway. When they came out, one of them was wearing rubber gloves and three men entered the cell and when they came out, I could see Nelani hanging from the door. His handcuffs had been removed.”

Inmate Tebogo Bereng also left Mangaung prison in a body bag, allegedly following an altercation about a blanket. On March 31 2013, Bereng, whose cell was in the Port Phillip unit, died in an isolation cell in the Wolds unit. His cellmate at the time, Lawrence Sehhonka, wrote to the WJP that Bereng had wanted to change his “inner duvet”, but the supervisor had refused. A verbal altercation broke out and the EST was called. “Supervisor called the EST to come and collect Tebogo Bereng to Broadway. Tebogo was shocked by the ninjas at that time.” Sehonka wrote.

Inmate Hlello Mbatyazwa saw Bereng arrive at the prison hospital. “Four or five Ninjas electroshocked him in the corridor at the entrance of the hospital, where there are no cameras. They put their shields to his head. Tebogo was handcuffed and he was screaming and trying to protect himself.”

Another inmate, Vusimuzi Nkonyana, saw Bereng leaving the hospital: “I saw him coming from the hospital as they were taking him to segregation. It looked like he was fitting.”

Bereng was an epilepsy patient, he wrote to the WJP in 2014 complaining about expired medication he was given for his epilepsy.

The ninjas escorted Bereng to an isolation cell in the Wolds unit. Some hours later, warders found Bereng lifeless in his cell and he was brought back to the hospital where a doctor declared him dead at 13:52. The doctor writes “post mortem requested” at the bottom of the medical form that was submitted to Chantelle Liebenberg, a pathologist at the state mortuary in Bloemfontein. Liebenberg however, only performed an external exam—a post mortem includes an internal exam—on April 2 and determined that the cause of death was natural, based on her examination and information given to her by the prison. She writes: “according to the inmate who shared a room with him, he started not feeling well and collapsed”. His cellmate, however, wrote to the WJP stating that he saw Bereng having a conflict with the warders and he saw the EST escort—a then still healthy—Bereng out of the unit.

The worrying inconsistencies do not stop here. Bereng’s brother Bassie recalls: “G4S phoned us and told us that Tebogo had died in his cell.” Bereng’s younger brother Robert: “We went to Mangaung prison where they handed us Tebogo’s belongings, but no one would talk to us.” When Robert saw the body of his brother at the state mortuary, things became even stranger. “He had a split lip, there was still dried-up blood on his lips.” Later, in the funeral home, Robert touched his brother’s body around his kidneys. “Some brown stuff, like cream, came off and the skin below was greenish.”

Nelani’s and Bereng’s suspicious passing are not the first or last death that has raised eyebrows at the embattled prison. The Judicial Inspectorate for Correctional Services (JICS) in its 2014 report signalled : “the contractor [G4S] breached clause 20 of the Concession Contract and Emergency Order No 3 namely by failing to comply with operating procedures by not getting into the cell immediately when they became aware of a suicide and resuscitating the inmate, failing to preserve the crime scene and failing to inform the controller within an hour of the incident”. It further stated that G4S had not provided an autopsy report for an alleged suicide that took place on August 13 2013.

In the section of the DCS draft report that the WJP has in its possession it further reads: “Death investigation reports are either not available, signed or include an autopsy report. MCC to confirm that all unnatural deaths are reported to the Police and next of kin and also that a record is kept of all deaths at MCC.”

A leaked internal email, exchanged among duty directors and managers at G4S during October 2012 reveals a possible culture of covering up. Tertius du Toit, the manager Compliance writes: “Hi, please be informed that it has come under my attention that this inmate tried to hang himself last night.” He goes on to explain that the inmate was removed from Broadway to health care, but there was no registration of his removal in the records, neither at Broadway nor at the hospital. The managers and directors on duty that day make no mention of the attempted hanging either. Du Toit then warns the addressees: “I personally think that there are a few ‘gaps’ that need appropriate attention and that if it gets to the wrong ‘ears’ we could have huge problems in terms of not reporting.”

However, despite evidence of non-compliance by their officials in terms of use of force, the obligation not to torture and the correct handling of deaths in custody, G4S was handed back control of the prison a year ago. Minister of Justice and Correctional Services Michael Masutha visited the jail shortly after the handover and said to the media that he was “very impressed with the state-of-the-art facility”. The department issued a press release in which they stated they were satisfied that the “issues” in Mangaung Correctional Centre had been resolved. Why then DCS has taken so long to finalise and publish their report on Mangaung prison is as big a mystery as the murky deaths of the Bereng and Nelani.

Department of Correctional Services responds: 

Your inquiry, with regards to Mangaung Correctional Centre (MCC), refers.

As stated previously, with regards to the investigation into MCC, there are still outstanding matters and further investigations are continuing, with more information and source documents being requested, based on issues emanating from the preliminary report.

The Department of Correctional Services (DCS) has, most importantly, succeeded in stabilising the situation at the centre, and in restoring effective control, discipline and rehabilitation programmes. In terms of the Correctional Services Act and other relevant legislation, any person/s found guilty of any violation/s must face the consequences of their actions. To this end, DCS is ensuring that no stone is left unturned in this investigation and any person/s found guilty will face the full might of the law.

1. When is the DCS report on Mangaung prison going to be finalised?

The draft report confirmed the necessity for further investigation into a number of areas. Therefore, as further investigations are continuing, at this stage there is no “final” report.

2. Will it be made public?

DCS has not acceded to requests, in terms of PAIA, for the report to be made public.

3. Why has it taken so long to finalise? It’s been nearly two years since Minister Ndebele announced the investigation.

The team appointed to take over Mangaung had to deal with stabilising, and managing, the centre, in addition to conducting the investigation. Several shortcomings, particularly in terms of accessing source documents, were identified, leading to the need for further responses from BCC.

4. Why did a draft DCS report (a section of which the WJP has in its possession) contain this information about the death of inmate Isaac Nelani? “In respect of death of Isaac Nelani, a discrepancy exists between MCC [Mangaung Correctional Centre] and pathologist records, MCC records the death as a suicide, whilst pathologist records it as a head wound.”

DCS is not aware of any reference to a head wound with regard to Isaac Nelani. We request that such information be provided to DCS for investigation.

5. Why is there a discrepancy between the draft report and the pathologists’ report? Which information did the DCS task force base its comments on?

As far as DCS is aware, none of the documents refer to a head wound. 

6. Why have the people involved in Nelani’s death not been questioned or brought to justice?

Following an investigation into Nelani’s death by the Departmental Investigation Unit (DIU), the matter was referred to the SAPS for criminal investigation. DCS does not have the mandate to conduct a criminal investigation.

7. What kind of consequences, if any, does G4S have to face for the death of Isaac Nelani? The pathologist deemed the death “suspicious” and he points out that blunt force caused the bruising of the heart, which indicates severe injury/assault.

Should there be a finding in any case that the procedures/policies or terms of contract have not been adhered to by the Contractor, DCS refers the case to the Supervisory Committee for a ruling on penalties against the Contractor. As stated above, DCS can only act in terms of the contract and cannot initiate a criminal investigation. However, where DCS becomes aware of possible criminal liability, the matter is referred to the SAPS.

8. JICS signals another suspicious death, on 13 August 2013 of an inmate named Mosotho. No pathology report was provided. What is DCS doing about this?

The National Commissioner has appointed a Task Team to look into all unnatural deaths at MCC. In this regard, all necessary documents have been requested from the Contractor. Where these documents have not been submitted (and should be in terms of the Contract), the matter is referred to the Supervisory Committee in terms of the Contract. Any possible criminal investigation will be referred to the SAPS. It must be understood that DCS does not have this capacity (of the Task Team) immediately available, and personnel are drawn from their current duties. As such, this takes some time. The matter of Mosuthu has been referred to a magistrate for an inquest. The inquest docket would have a pathologist’s report.

9. Inmate Tebogo Bereng was epileptic and according to eyewitness accounts, he was electroshocked repeatedly to the head on 31 March 2013, which most likely caused his death. Is DCS aware this happened? Will DCS investigate this death?

Please refer to response above.

10. The DCS draft report also mentions: “Death investigation reports are either not available, signed or include an autopsy report. MCC to confirm that all unnatural deaths are reported to the Police and next of kin and also that a record is kept of all deaths at MCC.” What is DCS doing about this?

Please refer to response above. 

11. Does DCS consider G4S capable of running a prison if it covers up deaths in custody and fails to provide death investigation reports and pathologist’s reports?

Until investigations have been completed, DCS is unable to comment in this regard. DCS certainly takes any allegations of deaths in custody seriously. Hence, the appointment of the Task Team. However, the non-availability of documentation cannot always be said to be the fault of the Contractor, and, hence, the need for an investigation. 

12. What kind of fines have been issued against G4S? How many and what is the amount?

In terms of the Correctional Services Act, Section 112 was instituted against the Contractor.

G4S response:

Allegations – Mangaung Correctional Centre – Death of inmates

A draft report was passed to Bloemfontein Correctional Contracts (BCC) by the Department of Correctional Services (DCS) last year. BCC has since responded in detail. G4S is confident that it complies with all the laws and regulations which stipulate in detail how investigations are conducted following the death of a prisoner and are committed to fully cooperate with the DCS. We strive at all times to uphold the rights of inmates and treat them accordingly.

Copyright Ruth Hopkins 2015

Related on F&O

Private prison operator accused of using drugs and electric shocks. By Ruth Hopkins, 2014 (*Subscription or day pass) 

F&O Hopkins

 A South African prison, run by the beleaguered multinational private security company G4S, allegedly forcibly injected inmates with antipsychotic medication and used electroshocks to subdue and control them. Prisoners, warders and health care workers said that involuntary medication was regularly practised at the Mangaung Correctional Centre near Bloemfontein. The company, G4S, denies any acts of assault or torture. The allegations are according to at least 35 sources – prisoners as well as security guards, prison and health officials – and based on medical records seen by reliable sources, legal documents and video footage shot inside the prison.

What has gone so horribly wrong with South Africa’s police? By Ruth Hopkins, 2013 (*Subscription or day pass)  

Steven Mothao was walking back home from a piece job on August 10, 2010, through Fordsburg in Joburg. Out of nowhere, three police officers appeared and pushed him against a wall. While onlookers gawked, the police officers slammed Mothao into a police van. He was detained in a police cell for 22 hours. For the first 14, he wasn’t offered a glass of water. Then Mothao was out on the street again. The police officers never identified themselves, they did not have an arrest warrant, and they did not inform Mothao of the reasons for his arrest. He sued the Minister of Police for damages and was awarded R150 000 in March. 

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RuthHopkins-FAOFacts and Opinions contributor Ruth Hopkins is a senior journalist with the Wits Justice Project in Johannesburg, South Africa.

 

 

 

 

 

 

 

 

 

 

*Facts and Opinions is a boutique journal, of reporting and analysis in words and images, without borders. Independent, non-partisan and employee-owned, F&O is funded by you, our readers. We do not carry advertising or “branded content,” or solicit donations from foundations or causes. Please support us, with a subscription, (here), a donation (below), and/or by spreading the word.

 

 

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Living With an Ankle Bracelet in America

By M.M. 
July, 2015

I cannot sleep. There is a device on my leg.

It requires that I wake up an hour early so I can plug it into a charger and stand next to the outlet, like a cell phone charging up for the day. Not the day, actually, but 12 hours. After that, the device runs out of juice. Wherever I am, I have to find an outlet to plug myself into. If I don’t, I’m likely to be thrown back onto Rikers Island.

The device is my ankle bracelet, which I’ve now been wearing for 63 days. I wear it afraid that someone at work will notice the bulge. When I go to school, I worry my friends will spot it and leave me. I push it up into my jeans, hoping they won’t see. But the higher up I push it, the more it starts to hurt; most days, my feet go numb. I try wearing bell-bottoms.

At the age of 22, I landed in prison. Though I had grown up around violence, it was my first time in trouble. I’d taken the law into my own hands during an altercation, because where I come from, we don’t dial 911 for help — we see how badly police officers treat people like us.

When I came home, I wasn’t the same “I,” and “home” wasn’t home anymore. For the rest of my life, I would have to live with a mistake I made at 22. I would never belong to myself again; parole dictates everything that I do.

I had been on parole for three years. I work full time at a law firm, attend college, and I am close to attaining my bachelor’s degree. For three years, I never violated any rules, which included not leaving the five boroughs and returning home before 9 p.m. every night.

I don’t have the luxury of the “college experience,” of going to concerts or hanging out with friends after class. And I learned from experience not to discuss my past with my classmates, at least not until they get to know me. People become fearful when they hear I was in jail.

Then I had a run-in with the police again and was charged with a DWI. I spent 30 days in Rikers and came frightfully close to losing everything I spent three years working for: My college semester and GPA, my job, my post-prison healing. I woke up in cold sweats at night, traumatized by the re-experience of being caged. And even though I am pleading not guilty and my case is still pending, my parole officer called me up after I left Rikers and asked me to come in to speak with his supervisor.

Details weren’t discussed. They never are; a call is made, a P.O. appointment is scheduled. The day of the meeting, I was in a panic. Entering that building — the office of parole — is guaranteed. Leaving it is not.

I was greeted by metal detectors and a throng of fellow parolees, mostly black and Hispanic, many in work uniforms, all waiting up to six hours to be seen. When my P.O. finally saw me, he explained right off that an electronic-monitoring device would be placed on my leg for a year to enforce my curfew, though it would come off sooner if I was “compliant.”

“But I have already been compliant, for years,” I said. As I had many times, I explained to my P.O. that I was in school, have a full-time job, and maintain good behavior. “Am I a flight risk? Or a frequent violator?”

The more I spoke, the more hostile he became.

Later on the bus, looking down and seeing the bulge on my leg, I cried.

This is what summer under surveillance looks like: I can no longer wear shorts. I cannot visit a beach without enduring public humiliation. I asked my parole officer whether I could attend a Yankee game for my birthday, but he turned me down, because it may have lasted past curfew. I usually spend Independence Day with my family in Long Island, but this year, I couldn’t dare ask my P.O. for permission to leave the borough.

I have been alternating three pairs of pants for almost three months now — the only pants that can accommodate the device. When I’m with my co-workers, I stand out as the only person wearing jeans; dress slacks are too much of a risk, because when I sit down, pants like those hike up. At home, unexpected visitors have me scrambling to put on pants.

Throughout the day, the device becomes heavier and more painful, causing me to bleed. I push it down on my ankle to let my blood circulate — but then the pain becomes unbearable, and I can’t plant my feet without crying out.

The device has me strapped, too, to a mistake I made at the age of 22. The device is, both literally and metaphorically, my greatest source of pain.

But every day I rise, stand by the socket, and charge my ankle to go to work.

Copyright MM and The Marshall Project, 2015

This column was originally published by The Marshall Project as part of a series called Life Inside, which offers perspectives from those who work and live in the criminal justice system.

So as not to violate the terms of his parole, the author asked that he be identified by his initials. M.M. is a full-time student and employee at a law firm in New York City. He has been on parole for more than three years on multiple charges stemming from an altercation when he was 22 and his subsequent re-arrest for driving while intoxicated.

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Facts and Opinions is a boutique journal, of reporting and analysis in words and images, without borders. Independent, non-partisan and employee-owned, F&O is funded by you, our readers. We do not carry advertising or “branded content,” or solicit donations from foundations or causes. Support us with a subscription (click here for subscription details) or a donation:

 

 

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Are countries legally required to protect citizens from climate change?

A Dutch court recently ruled that greenhouse gas reduction is a state obligation. Here’s what that could mean for the rest of the world.

In January 2015, Secretary-General Ban Ki-moon inaugurated the Canal Top Solar Power Plant, above, in Gujarat, India. UN Photo/Mark Garten

In January 2015, Secretary-General Ban Ki-moon inaugurated the Canal Top Solar Power Plant, above, in Gujarat, India. UN Photo/Mark Garten

By Sophia V. Schweitzer, Ensia 
July, 2015

On June 24, 2015, a court in The Hague ordered the Dutch government to act faster in its duty to protect its citizens against the effects of climate change. This marks the first time the issue has been legally declared a state obligation, regardless of arguments that the solution to the global climate problem does not depend on one country’s efforts alone. The decision was based on various branches of law, including, most importantly, human rights. In effect, it makes the Dutch government accountable for greenhouse gas emissions on its own territory, an outcome other countries may also need to heed.

The government, the court said, must ensure that Dutch emissions in 2020 will be at least 25 percent lower than those in 1990 — the amount the Intergovernmental Panel on Climate Change Fifth Assessment Report says is needed from industrialized countries if the world is to not exceed 2 °C (3.6 °F) warming and avoid the worst consequences of climate change. Dutch political leaders had been planning to cut emissions by up to 17 percent within the next five years.

“Our case lets politicians know that they can’t let climate change happen. They have a duty to act, be it legally or morally,” says Dennis van Berkel, legal counsel to the Urgenda Foundation, which, supported by about 900 co-plaintiffs, initiated the suit.

The Dutch, whose country lies largely below sea level, have reason to worry about climate change. But they live in a country that has resources to adapt. People in poorer countries, who have contributed least to climate change and are also often least well prepared to respond, are likely to suffer the most. It’s for them that the Dutch victory is critical, says van Berkel. “The rights of our co-plaintiffs are central, but people outside of the Netherlands will be even harder hit by climate change,” he says. “The ruling will encourage others to appeal to human rights when it comes to climate change threats.” Which brings up the big question: Is the Dutch court ruling a landmark for the entire globe?

Sun over Greenland

Greenland melting © Deborah Jones 2007

From Human Rights to Policies

In 2008, the International Council on Human Rights Policy in Geneva, Switzerland, wrote in a report about climate change and human rights: “As a matter of law, the human rights of individuals must be viewed in terms of state obligations.” But the world has long been grappling with international agreements for such obligations; from the 1997 Kyoto Protocol to repeated Conference of the Parties to the United Nations Framework Convention on Climate Change — COP — meetings, the best efforts have struggled to gain traction, in large part because political actions have not kept pace with promises made.

Aware of that gap, citizens have tried to litigate political leaders into action, but prior to the Urgenda (a portmanteau of “urgent agenda”) case there were no victories. In 2005, for example, the Inuit Circumpolar Council filed a petition to the Inter-American Commission on Human Rights, based in Washington, D.C., claiming that global warming caused by greenhouse gas emissions from the United States violated the Inuit people’s right to sustain their traditional ways of life due to destruction of the Arctic environment. But the commission dismissed the complaint due to lack of sufficient evidence.

“The obligations are clear,” says Wim Voermans, a professor of constitutional law at Leiden University in the Netherlands. “But when they aren’t kept, can citizens then make a claim that it’s a country’s non-acting that’s endangering them? That’s the challenge. … It’s hard to prove direct causalities in civil litigation.”

Kivalina, Alaska, in 2008. US Coast Guard, Lt. Cdr. Micheal McNeil

Kivalina, Alaska, in 2008. US Coast Guard, Lt. Cdr. Micheal McNeil

In 2008, the village of Kivalina, Alaska, sued several large energy companies, claiming that global warming had diminished sea ice formation, forcing the village to relocate. The case was dismissed based on judicial determination that decisions about permissible levels of greenhouse gas emissions should be made by the executive and legislative branches, not by the courts.

“The real problem is, who has what power?” says Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University Law School. “Whose job is it to set climate policy? Basically, all judges have said, not me. Before the Urgenda case, no court had really taken on this role.”

Courts haven’t been entirely averse to taking responsibility, though. In 2006–7, Massachusetts sued the U.S. Environmental Protection Agency, which had refused to regulate carbon dioxide as a pollutant under the federal Clean Air Act of 1970. The agency claimed that any attempt to regulate greenhouse gases might impede potential White House strategies. The Supreme Court disagreed. While it was an important outcome, “the court did not set policy,” Gerrard explains. “It was just saying, it is EPA’s job.”

Meanwhile, in different countries courts have varying views about how broadly they can act. In environmental policy, courts have at times chosen to intervene on behalf of the public. In 2001, for example, the Supreme Court of India decreed that all Delhi buses had to convert from diesel to natural gas, which has had a profound effect on air quality. It was an important ruling, but it didn’t get into climate change.

Amid this impasse between governments avoiding responsibility and courts preferring not to interfere, academics and attorneys worldwide as well as some members of the judiciary have felt a growing unease. A group of them eventually came together to determine whether climate change is an actual issue under existing law, specifically international law, human rights law, national environmental law and, to a lesser extent, tort law. They concluded the answer is yes. “There are longstanding principles of human rights and protection of environment that are threatened by climate change,” Gerrard says. “Our view is that the law should have the ability to address this great threat.”

The group’s discussions, which took several years, led to the launch of the Oslo Principles on Global Climate Change Obligations on March 1, 2015. Drawing on existing law and the IPCC’s 2 °C (3.6 °F) threshold finding and prepared by expert members from national and international courts, universities and organizations in every region of the world, the principles seek to define the scope of legal obligations relevant to climate change. “We are currently educating judges around the world of the existence of the principles,” says Gerrard, a co-author of the principles. “Our hope is that judges in various countries will use the framework of the principles and that they are cited by the courts.”

The Urgenda case began before the principles were established, and was inspired by a book titled Revolution Justified, written by Roger Cox, one of the lawyers representing Urgenda, which looks at how courts can play a role in solving energy issues. But as the suit progressed it relied in part on the Oslo Principles, bringing together various branches of law and IPCC science. According to Gerrard, the Urgenda ruling was “the first decision by any court in the world ordering states to limit greenhouse gas emissions for reasons other than statutory mandates.”

Meanwhile, new scientific findings keep pouring forth. The journal Nature reported in February that carbon emissions from thawing permafrost will accelerate climate change, information not accounted for in current IPCC reports. With each such finding, the goal to not exceed an increase of 2 °C (3.6 °F) becomes more difficult. “Our findings add one more pressure for action,” says Kevin Schaefer, a scientist at the National Snow and Ice Data Center at the University of Colorado, who contributed to the Nature paper. “There is a sense of urgency. The carbon feedback is an irreversible process, a true tipping point.”

But a lack of scientific evidence hasn’t been the stumbling block for climate action in the decades since scientists have identified the issue. The Urgenda ruling could offer a different way forward because it sets a legal precedent, saying that concrete reductions cannot wait. While the ruling is not binding for any other country, it sets an example and, as such, is a landmark for the world.

“We hope that there is enough momentum built that many countries feel an obligation,” Gerrard says.

© Gavin Kennedy 2013

Windmills in Mexico © Gavin Kennedy 2013

A Pathway to Commitment

This offers a new piece to the puzzle as countries move toward convening in Paris for COP 21 this coming November — a piece they will likely have to deal with before then as lawyers are emboldened to bring similar cases around the globe. “No one expects that commitments made in COP 21 will be sufficient to avoid dangerous climate change,” van Berkel says. “But after COP 21 it is going to be critical that countries remain committed to what is needed. Juridical procedures similar to our case are going to be instrumental in this.” No events have been scheduled yet in Paris to discuss the Oslo Principles, but Urgenda has been organizing a march from Utrecht to Paris starting November 1 to draw further attention to action needed to fight climate change.

A citizen suit similar to Urgenda’s is currently underway in Belgium, and another is expected soon in Norway. Urgenda’s decision may yet be appealed, and future cases may be successful or not. Either way, they each will play a role in changing the zeitgeist toward a feeling that climate change and human rights are inextricable, says Bill McKibben, founder of the climate campaign 350.org, which, among other actions, has led the campaign for universities and other entities to divest from fossil fuels. “They’ll drive home, constantly, the message from Desmond Tutu: Climate change is the human rights crisis of our time.”View Ensia homepage

Creative Commons

Related on Facts and Opinions:

The Dutch Prescription:  take the future to court, or take it outside, column by Chris Wood: Natural Security

The Banality of Ethics in the Anthropocene, by Clive Hamilton

contributor-Sophia-V.-SchweitzerSophia V. Schweitzer is an environmental science writer based on the Island of Hawai’i. Visit her website here:  http://sophiavschweitzer.com

 This report originally appeared on Ensia: http://ensia.com

 

 

 

 

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Journalism has value: please help sustain us with a “hat tip” donation (every two bits helps), or by purchasing a subscriptionFacts and Opinions is an online journal of select and first-rate reporting and analysis, in words and images: a boutique for slow journalism, without borders. Independent, non-partisan and employee-owned, F&O provides journalism for citizens, funded entirely by readers. We do not carry advertising, you will never see “branded content” articles on our pages, and we do not solicit donations from foundations or causes. Subscribe by email to our free FRONTLINES blog, find evidence-based dispatches in Reports; commentary, analysis and longer form writing in OPINION-FEATURES; and image galleries in PHOTO-ESSAYS. Some of our original works are behind a paywall, available with a $1 site day pass, or with a subscription from $2.95/month – $19.95/year. Email editor@factsandopinions.com to inquire about republishing F&O’s original content. 

 

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A Judge Asks: How Do We Hold a Child’s Mind Accountable?

An American judge on why we don’t know nearly enough about the link between the young brains and behavior.

 

By Morris B. Hoffmann, the Marshall Project
June, 2015

Photo by Riccardo Cuppini via Flickr, Creative Commons

Riccardo Cuppini/ Flickr/Creative Commons

We humans are a morally messy species, constantly jostling one another at the marketplace of desires. But we also have built-in restraints. We know we are moral agents who will be held responsible when the pursuit of our own desires causes others harm. You break it, you buy it.

It is worth remembering these enduring truths as the glare of public attention once again spotlights the latest trials of the century. That glare can obscure some pretty clear lines the law has drawn over the last 5,000 years, including the differences between motive and excuse, and responsibility and punishment.

Just because a criminal has a perfectly good explanation for his harmful actions — I’m poor and angry, I am a heroin addict, I was doing it to please my friends or family — doesn’t mean we excuse those actions. That wouldn’t be a very sensible way to regulate the crowded marketplace of desires. The law excuses crimes only in a few very narrow kinds of circumstances, generally when those circumstances are so extreme that any reasonable person faced with them would also act criminally. The father forced by kidnappers to rob a bank under the threat they will kill his kidnapped son.

Insanity is another kind of extreme excuse. Many of us may doubt psychiatry’s ability to ferret out the truly delusional from the fakers. But we should broadly be able to agree that if we could reliably diagnose the fellow who shoots a man he really thinks is a space alien bent on killing all humans, he should not be held as responsible as the fellow who shoots a man he knows is just a man having an affair with his wife.

My friend and MacArthur1 colleague Stephen Morse has coined a term for the mistake of conflating motive, or more broadly any cause, with excuse. He calls it “the psycho-legal error,” and it is rampant in both popular and academic discussions of criminal responsibility. Few of us would be persuaded by a killer’s lawyer who argued that his client didn’t pull the trigger because it was his client’s finger that did it, or his client’s finger muscles, or the motor neurons leading to those muscles. Yet when we follow those neurons all the way up to the brain, suddenly any unusual condition of the brain becomes the moral agent, the excuse. “It wasn’t my client who pulled the trigger, it was his brain tumor.”

Sorry, but unless and until we know substantially more about how brains cause behaviors, and in particular how certain brain defects might affect the psychologies pertinent to responsibility, this defense of “my brain made me do it” will, or at least should, never go anywhere. Even if we were certain of the causal link, cause isn’t excuse. It couldn’t be. Brains “cause” all behaviors.

Some aspects of the debate about juvenile responsibility are a form of the psycho-legal error. “It wasn’t my client, it was his unformed prefrontal cortex.” We do not know nearly enough about the brain to be able to distinguish reliably between a 17-year old with a fully developed brain and a 29-year old with an underdeveloped one. Or to know whether any “underdevelopment” has anything at all to do with responsibility. So we are forced to draw arbitrary lines. In Roper v. Simmons2, the Court drew the line that 17-year old killers cannot be executed. It’s not an unreasonable line but it is an arbitrary one, and of course the controversy in that case was whether it was a constitutionally mandated one.

The psycho-legal error often masks a different kind of error in statistical reasoning. When I teach Roper v. Simmons to my law and neuroscience students, I ask them to raise their hands if they were once teenagers. Then I ask them to keep their hands up if, when they were teenagers, they broke into a woman’s house, kidnapped her, tied her up and threw her off a bridge into a river while she was still alive (which is what Mr. Simmons did). We have no rational basis on which to say that Mr. Simmons’s presumably underdeveloped or otherwise dysfunctional prefrontal cortex “caused” him to do this unspeakable crime.

Debates about juvenile justice also sometimes mix up responsibility with punishment. We hold our own children responsible for their actions from about the time they learn to talk. English common law drew the line of criminal responsibility at age seven. Indeed, holding children responsible for their actions is one of the important ways we teach them to become responsible adults. In this sense, it is more important to hold children responsible than adults.

It is also becoming increasingly clear that our brains come pre-equipped with deeply held, and largely cultural-invariant, moral intuitions. Even infants have a rudimentary moral knowledge, distinguishing, and preferring, images of “helping” behaviors from those of “hurting” behaviors. We not only hold children responsible, they are generally responsible.

Punishment is quite something else. Humans have an unbroken tradition of gauging the punishment not just to fit the crime but also to fit the criminal. We hold almost everyone responsible for their crimes regardless of their individual situations, but then take those individual situations into consideration when we impose punishment. A 10-year-old shoplifter and a 19-year-old armed robber are both responsible, even though we punish them very differently. We’d have no right to punish them at all, whether as parents or a justice system, unless we first held them responsible.

Notorious trials make riveting theater, but they can also be good reminders of the challenges we face as intensely social species with big strategic brains, bumping into each other as we live our lives and try to follow the rules. Universal and enduring principles of criminal responsibility, including the commands that motive is not excuse and responsibility is not punishment, have helped us, and should continue to help us, navigate these challenges.

Copyright The Marshall Project 2015

This essay was written by Morris B. Hoffman for The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system. Sign up for theirnewsletter or follow them on Facebook or Twitter. Morris Hoffman is a state trial judge in Denver, a member of the John D. and Catherine T. MacArthur Foundation’s Research Network on Law and Neuroscience, and the author of The Punisher’s Brain: The Evolution of Judge and Jury (Cambridge).

Notes: 

1.  John D. and Catherine T. MacArthur Foundation’s Research Network on Law and Neuroscience

2. Roper v. Simmons, 543 U.S. 551 (2005), was a landmark decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18 — Wikipedia: https://en.wikipedia.org/wiki/Roper_v._Simmons

 

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