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Critical Resistance Report Amnesty for Prisoners of Katrina Dec 2007

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for Pr isoner s of Katr ina

a special repor t by c r i t i c a l r e s i s ta n c e

december 2007

Amnesty for Prisoners of Katrina: a special repor t
by Mar ina Sider is and the Cr itical Resistance Amnesty Wor king Group

c r i t i c a l r e s i s ta n c e n e w o r l e a n s

Street Address:
9 3 0 N o. B r o a d S t .
N e w O r l e a ns , L A 7 0 1 1 9
Mailing Address:
P.O. Box 71553
New Or leans, LA 70172
P 504.304.3784
cr no@cr iticalresistance .or g iticalresistance .or g

table of contents
Introduction 	 1
Repor t Over view 	


I. Policing and Prisons in Pre- and Post-Katrina New Orleans 	 2
A. The Pr isoner s of Katr ina 	 2

B . The Cr iminalization of New Or leans Residents 	 3
C . Camp Greyhound 		
D. Legal Limbo 		

II. The Legal Case for Amnesty 		
A. Inter national Human Rights Treaty Obligations 	 6

B . Violations of Inter national Treaty Obligations 	

III. Historical Examples of Amnesty 		
IV. Recommendations 	







In the aftermath of Hurricane Katrina the
world watched as thousands of people, the
majority poor and Black, were abandoned
in the Gulf South. Many of those left to
die were locked inside the flooding Orleans
Parish Prison. While some of their stories,
and the stories of those incarcerated at
New Orleans’ “Camp Greyhound” postKatrina, have been exposed,1 the vast
majority of those imprisoned before, during
and after Katrina—collectively, known
as the “Prisoners of Katrina”—suffered,
and continue to suffer, silently. Moreover,
discussion of an appropriate remedy for
the egregious violations of human rights
suffered by the “Prisoners of Katrina” has
not been prominent.
While much of the post-Katrina
discourse has spoken of the Government’s
failure to respond, this report documents a
few predominant ways in which the City,
State and Federal government entities did
respond: 1.) through unparalleled levels

of policing, 2.) arrests, and 3.) the cruel
abandonment of those locked up in Orleans
Parish Prison.
Critical Resistance (CR) is a national
grassroots organization whose mission is
to end society’s use of prisons and policing
as responses to what are social, political
economic problems.
CR’s Southern
Regional Office has been located in New
Orleans since 2002. This report is published
as part of CR’s Campaign for “Amnesty for
the Prisoners of Katrina” which seeks to
challenge the imprisonment, prosecution,
arrest and conviction records of people
whose cases were impacted by Hurricane
CR’s campaign seeks the release, dropping
of charges, and expungement of records of
those arrested during Katrina, for trying to
take care of themselves and their loved ones,
and those whose cases were impacted by the
storm. Those whose cases were impacted by
the storm include not only those arrested

for trying to survive, but also those held past
release dates after being transferred from
OPP to prisons around the state; those who
have had their fundamental constitutional
right to defend themselves dramatically
impacted by lost evidence and witnesses; and
those who were awaiting court appearances
in fall 2005 who were unaware that the
courts restarted prosecutions of their cases
and may have outstanding warrants for their
The following report details why the call
for Amnesty for Prisoners of Katrina is not
only a necessary step to rectify injustices,
but also how amnesty has been used
historically and is an appropriate remedy
under International Human Rights treaties
signed by the United States. In Post-Katrina
New Orleans, amnesty is a logical solution
to minimize the long term consequences for
the “Prisoners of Katrina”. Further, amnesty
can fundamentally change the ways in which
we approach true public safety.2

violated and a remedy, such as a grant of
amnesty, is required.
Part III outlines examples of grants
of amnesty or its equivalent in history.
Historically, amnesty has been used to expose
and recognize human rights violations and
promote reconciliation amongst impacted
parties and those responsible for the abuses.
Perhaps, the most well known example of
a national policy of amnesty occurred in
South Africa as that nation dismantled its
own system of racial apartheid. The newly
elected Black South African government
established a Committee on Amnesty,
as a fundamental part of its Truth and
Reconciliation Commission (TRC).
Finally, Part IV examines and recommends

remedies similar to amnesty under current
provisions in Louisiana law such as
executive pardon and expungement.
Widespread deprivation of liberty
was a prominent feature of the response
to Hurricane Katrina, which has neither
received sufficient attention nor official
International Human
Rights treaties the U.S. has signed on to,
along with community desires for healing
and reconciliation, should compel an official
grant of amnesty, to at least partially remedy
the injustice suffered by prisoners of Katrina
and their families.
When Hurricane Katrina hit New Orleans,
approximately 6,500 (and possibly as many
as 8,000) adults and youth were incarcerated

report overview
Part I of this report is an overview of
New Orleans’ prisons and policing before,
during, and in the immediate aftermath of
Hurricane Katrina.
Part II details various legal precedents,
focusing on International Human Rights
treaties that the United States is party
to, and the violations of these treaties
that mandate a grant of amnesty or
similar remedy. Specifically, the report
demonstrates that under The Convention
on the Elimination of Racial Discrimination
(CERD), the International Covenant on
Civil and Political Rights (ICCPR) and
the Convention Against Torture and other
Cruel, Inhuman or Degrading Treatment
or Punishment (CAT) rights have been

a m n e s t y f o r p r i s o n e r s o f k at r i n a

i . p o l i c i n g a n d p r i s o n s i n p r e - a n d p o s t - k at r i n a n e w o r l e a n s
in Orleans Parish Prison (OPP), exempted
from the otherwise mandatory city-wide
evacuation. In the words of Sheriff Marlon
Guzman, and with the backing of Mayor
Ray Nagin and Governor Kathleen Blanco,
Orleans Parish prisoners were left to stay
“where they belong.”3 Additionally, youth
from New Orleans’ Youth Study Center
and prisoners from Saint Bernard parish
were moved to OPP. Sheriff Guzman’s only
plan in the event of disaster or emergency
was to “vertically evacuate” prisoners to the
top floors of the jail (which is three stories
high) if flooding occurred. However, the
swollen population of the jail made such a
plan untenable, as has subsequently been
well-documented by both prisoners and
deputized staff.4
New Orleans is the 35th most populous
city in the U.S., but OPP is the 9th largest
local jail.5 This disparity is explained by
the fact that New Orleans has the highest
incarceration rate of any large city in the
nation, a rate that is double the national
average (already higher than any other
nation).6 The sheer number of people
incarcerated in New Orleans on any given
day is grossly disproportionate to any other
city in the world.
The demographics of New Orleans’s
imprisoned residents become even more
skewed when race and class are taken into
account. Prior to Hurricane Katrina,
Orleans Parish was 66.6% Black, but almost
90% of prisoners at OPP were Black. On
an average day, 60% of OPP prisoners were
there on attachments, traffic violations, and
municipal infractions—“crimes” which
often boiled down to failure to pay a fine.
For African-American residents of New
Orleans, and poor residents of all races, the
incredible toll that imprisonment of family
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members and loved ones was already taking
on communities was severely heightened by
A . The P r i so ner s o f Kat r i na
“We’re going to keep our prisoners
where they belong.” – Sheriff Guzman,7
commenting on the decision not to evacuate
prisoners from Orleans Parish Prison
After being abandoned for days in a
flooded jail and held at gunpoint on a
freeway overpass, OPP prisoners were sent
“willy nilly” to prisons around the state.8 As
many as 8,500 people, the majority of them
pre-trial, remained incarcerated in prisons
and jails throughout Louisiana for months,
following the storm.9 The human and civil
rights violations suffered are innumerable.
The following case examples highlight
the injustices people faced—through
abusive arrest practices, cruel conditions
of imprisonment, denial of due process,
and illegal incarceration—and point to the
urgent need to remedy any lasting effects
the Prisoners of Katrina face.
•	 Pedro Parra-Sanchez was
booked into the Camp Greyhound
jail on October 13, 2005 and spent
over a year in three different state
prisons without speaking to a single
attorney or judge. When he finally
was taken to court, 400 days after
his arrest, the DA apologized for
his “prolonged incarceration” and
the Judge called his time in jail
•	 Deaconess Merlene Maten is
a 73 year-old church deaconess and
grandmother. She spent two weeks in
jail for allegedly taking sausage from
a deli the day after Katrina, while

d e c e m b e r 2007

caring for herself and her 80 year-old
disabled husband. Her charges were
eventually dropped, the arrest record
would remain unless a motion for
expungement was granted.
•	 Malik Young, an employed
father, was arrested September 1,
2005 and charged with looting a case
of cold drinks, 56 dollars in change
and a video game. Bail was set at
$60,000 and Young spent six months
in prison before finally being released
to house arrest. He was subsequently
offered a 3-year sentence.
•	 Rachel Francois’s mother had
paid her bond before Katrina, but
Ms. Francois was kept in OPP and
transferred to Angola post-storm. If
Ms. Francois had still been at OPP,
the misdemeanor hold that meant
she could not be released from
Angola would not have prevented
her bond release from OPP.
•	 Leroy Foster, age 60, returned
to the apartment building his niece
owned in Treme when Mayor Nagin
told residents of zip code 70116 to
come back to New Orleans. One
evening, Mr. Foster went downstairs
to move his car to a more well-lighted
area. Having heard gun shots, Mr.
Foster took his gun with him. He
was stopped by New Orleans Police,
handcuffed and asked for a driver’s
license. But, Mr. Foster had lost his
license while wading through flood
water for days. When asked if he had
an arrest record, Mr. Foster stated
that he had a conviction from a fight
22 years ago. The police told him he
was a felon in possession of a gun, and

took him to the Camp Greyhound
jail, where he spent four days in
custody. He was finally arraigned
approximately seven months after his
arrest, and after retaining a private
attorney, the charge against him
was dropped. The arrest, however,
remains on his record.

jail, Toussaint was given the option
of pleading guilty and accepting 40
hours of community service, or being
sent to Hunts Correctional Facility
and waiting as long as three weeks
to be processed. Toussaint chose
community service, and now has his
first “criminal” conviction.10

•	 Iris Hardeman was a 53 year
old African American woman
arrested in March 2005 on minor
charges. Her family was told that
but for the storm, she would have
been released. Due to Katrina she
was moved to Angola and did not
have any paperwork. Ms. Hardeman,
who had been ill, died while still in

The over 1667 people (for whom a team of
defense attorneys filed habeas petitions)who
challenged the legality of their incarceration
and requested their immediate release.11

•	 Vincent Norman was arrested
on August 24, 2005 on a warrant for
failure to appear in court and to pay
a $100 fine. He was scheduled to be
released August 31, after spending
7 days in prison and paying his fine.
Lost in the system after Katrina, he
was finally released December 5,
•	 Tammy Williams accepted a
ride from a stranger driving a stolen
mail truck while attempting to get
her family out of New Orleans. All
of occupants of the vehicle were
arrested after police stopped the
•	 Brandon Toussaint, aged 18,
was arrested in the weeks following
Hurricane Katrina, while going from
his apartment to another one upstairs.
Toussaint was charged with a curfew
violation and public intoxication,
and taken to Camp Greyhound. In
a make-shift legal proceeding at the

B. The C r i mi nal i zat i o n o f N ew
Or leans Resi dent s
A fearful Friday has arrived in
lawless New Orleans, with police snipers
stationed on the roof of their precinct,
trying to protect it from the armed thugs
roaming seemingly at will through the
flood-ravaged city...Governor Kathleen
Blanco said “I have one message for these
hoodlums: These troops know how to
shoot and kill, and they are more than
willing to do so if necessary, and I expect
they will.”
– CNN, September 2, 2005 12
In the weeks immediately following the
storm, media coverage of New Orleans
was racially charged and false. Highranking public officials, namely then-police
Superintendent Eddie Compass III, reported
rumors of violent crime in the Superdome
and on the streets.13 Subsequent critiques
have highlighted how Black New Orleanians
were primarily portrayed as “looters” while
whites were seen as “resourceful.”14 Media
coverage was dominated by footage and
accounts of so-called “looting,”15 and
punctuated by reports of helicopters being
fired upon and rescue boats being stolen.16
As the People’s Hurricane Relief Fund and

Oversight Coalition noted, in this footage,
Blacks were depicted as the perpetrators
of crime while whites were viewed as
resourceful.17 Three days after the storm,
police from the city of Gretna, on the west
bank of the Mississippi, met mainly Black
New Orleanians attempting to evacuate
across the Crescent City Connection bridge
with threat of force, firing warning shots
over their heads and refusing to let them
Far less reported was the subsequent
realization that most reports of serious and
violent crime were simply false.19 One month
after Katrina devastated New Orleans, the
New York Times front page blared: “fear
exceeded crime’s reality in New Orleans.”20
Police Chief Compass, who by that time
had resigned, publicly retracted his earlier
reports, admitting there were “no official
reports to document any murder…rape or
sexual assault.”21 As one scholar observed,
“audiences are invariably smaller for the
retraction.” 22
In response to the false reports, emphasis
was placed on the need for law enforcement
to restore order. For the greater American
public who looked on, false crime reporting
transformed disbelief at the appalling lack
of response to the disaster into outrage at
the notion that people were taking criminal
advantage of an already horrific situation.
And this outrage, combined with deeply
rooted racism, spurned a tremendous shift
in the relief effort, towards a perceived
need to restore law and order. By focusing
on a massive effort of law enforcement and
punishment, further suffering was generated
in two ways: first, those who were swept up
and incarcerated faced abusive conditions
and prolonged, illegal imprisonment;
second, an already faltering relief effort was
further debilitated by draining valuable
resources, people power, time and attention

a m n e s t y f o r p r i s o n e r s o f k at r i n a

away from the urgent needs of thousands
still stranded in New Orleans.24 One New
Orleans-based community organizer linked
the events surrounding the storm to the
city’s past: “this emphasis on ‘law and order’
has historically had a devastating impact on
the people of New Orleans. Locking people
up in this crisis is cruel mismanagement of
city resources and counters the outpouring
of…support and concern for all survivors of
Hurricane Katrina.”25
C . C am p Greyhoun d
They might spit on you. They might have
AIDS…a looter to me is no different than
a grave robber.26
– Warden Burl Cain, Camp Greyhound
One of Louisiana officials’ top priorities
in the rebuilding of New Orleans was the
construction of a make-shift jail, Camp
Greyhound, located within the Greyhound
bus station and train terminal in downtown
New Orleans. Constructed just five days
after Katrina made landfall, Warden Burl
Cain of Angola State Prison called Camp
Greyhound “a real start to re-building” New
Orleans.27 At the direction of the Louisiana
Department of Corrections, Warden Cain
used the labor of prisoners from Angola to
build cages out of chain-link fence topped
with razor wire in the back parking lot of
the station; those arrested would sleep on
the pavement, guarded by correctional
officers from Angola.28
Over 1,200 people were cycled through
Camp Greyhound during the six weeks it
was open,29 clear evidence that arrest and
incarceration were a primary means of
dealing with the post-storm crisis. Early
on, the vast majority of arrests were for acts
broadly characterized as “looting,” which
ranged from acts of desperation such as
taking much needed supplies, to theft born
a special report


of opportunity.30 In the ensuing weeks,
other common reasons for arrest included,
vehicle theft and resisting arrest, as well as
curfew violations, and public intoxication.31
That so many arrests were made during a
period when the city was “largely empty and
water logged” suggests that law enforcement
was throwing its net widely and operating
at exceptional levels.32 Law enforcement
officials “settled into a posture of undeclared
martial law”33 and proceeded to engage
in “prophylactic” arrest-making and
incarceration.34 For those unlucky enough
to be caught in this fray, the devastation
wrought by the hurricane was made
significantly worse at the hands of officials
who supposedly had arrived to help.
The first arrest and booking into Camp
Greyhound is a story that corrections
officers lauded in the media, but one that
can and should be reconsidered as an early
indication of how misguided the focus on
law enforcement was. A man desperate to
get out of New Orleans drove up in a stolen
Enterprise rental car, hoping to buy a bus

to Houston, only to be called a “thief,” and
a group who were arrested for fleeing the
city in a stolen mail truck.37 These stories
exemplify a rather astonishing approach to
disaster relief, where the chosen method
was evacuation-by-incarceration. They also
demonstrate the widespread portrayal of
pro-social behavior, wherein community
members attempted to aid in one another’s
rescue and survival, as deviant or antisocial.38
The harsh attitudes of officials at all
levels directed towards residents accused
of being “looters” were striking given the
catastrophic situation. For example, Warden
Cain confided to a Times-Picayune reporter
that, “a looter to me is no different than a
grave robber.” 39 This sentiment mirrored
that of the most prominent political actors,
including Mayor Nagin, Governor Blanco,
and President Bush, who implicitly and
explicitly authorized the use of deadly force
against “looters.”40 The decision to place so
much attention and energy on “looting” in
the midst of a much larger crisis that by most
accounts did not
receive adequate
the question, as
Professor Jonathan
was a deliberate
diversionary tactic
to distract from a
miserably failing
federal response.41
above: Broad Street bridge, where thousands of prisoners were left for days.
Later reports,
ticket out of town.35 Instead, he was arrested once the storm was a bit farther removed
and imprisoned for auto theft at the newly and clean up efforts had begun, demonstrate
converted jail.36 Other stories echoed this an equally unnerving shift in arrest and
one, such as a young man who used a public incarceration at Camp Greyhound. A
school bus and helped 60 people evacuate report in the independent news outlet, the

d e c e m b e r 2007


New Standard, offered compelling evidence D . L egal L i mbo
Greyhound, defense attorney Phyllis Mann
that arrests began to serve as a means
Accounts from defense attorneys and reports that, rather than releasing people
of acquiring free labor.
One reporter others suggest that what happened to back to New Orleans or providing a means
described that people who were arrested people once transferred out of Camp to be reunited with family members who had
primarily for curfew violations and public Greyhound was anyone’s guess.47 With been evacuated, local judges set bonds higher
intoxication, were denied the use of a phone over 6,500 adults and youth evacuated from than many could pay.51 As a result, some
or access to an attorney, then pressured Orleans Parish Prison days after Katrina people accepted guilty pleas in order to be
to plead guilty and accept “community hit, and an additional 1,200 or more that released.52 Many others, however, were not
service.”43 Prisoners described being arrested were booked through Camp Greyhound, even given that chance.
on their own property for curfew violations, defense attorneys estimate that at least 8,000
A team of defense attorneys, including
in public places for criminal trespassing, prisoners, the majority of them pre-trial, Mann, found that individuals who were
and for public intoxication and battery after were displaced into jails and prisons around caught in legal limbo after Louisiana’s
simply asking to be left alone. 44 Asked about the state.48 Virtually all of these evacuees criminal legal system collapsed fell into
lack of access to phones, one guard explained, were subsequently denied access to attorneys, several categories. Of those who were arrested
“I have a fax phone and I have one local line courts, and often, any information about their before Katrina, some were unable to post bail
[here], and that’s it.”45
before the storm and were lost in the shuffle
case or exactly why they were being held.49
A make-shift courtroom was set up on the
Prisoners were also denied contact with afterwards, and some were arrested so soon
second floor of the station, where prisoners their families and loved ones. Attorneys before the storm that they never saw an
were taken the morning after their arrests. estimate that “[f ]or days and sometimes attorney or magistrate courtroom. Of those
There, a single public defender, Clyde weeks, defendants were not given access to who were arrested during and after the storm,
Merritt, explained their options: plead telephones to find out whether their families some never had a bond hearing; some were
guilty and accept 40 hours of service, or be had survived the storm.”50 Thus, in addition unable to post bond and subsequently had
sent to Elayn Hunt Correctional Facility to widespread civil and constitutional no access to an attorney. 53 Many people
and wait a minimum of 21 days before rights violations, the emotional distress in both groups were held beyond their
being processed. Merritt then explained such dislocation must have caused is almost release dates or for longer than the maximum
that he could offer no individual legal unspeakable.
amount of time to which they could have been
advice; for that, people would have to retain
For those who were given a bond sentenced. More than a year after the storm,
their own attorneys (seemingly impossible hearing after being transferred out of Camp Mann wrote that people arrested in New
given the lack of phone
Orleans continued to do
access and the number of
“police-sentencing time:”
people evacuated from
waiting as long as 45 days
the city). Under such
on a misdemeanor or as
coercive circumstances,
long as 60 days on a felony
it is easy to understand
before the D.A. decided
why most accepted the
not to prosecute;54 “DA
labor (primarily spent
time:” for those unable
cleaning up the aftermath
to post bond because
of Katrina from police
of over-charging; and
“Katrina time:” sitting in
and jails) in exchange for
jail since being evacuated,
a guilty plea. All of these
even well beyond release
individuals now have
a conviction on their
above: Burn marks on the side of Orleans Parish Prison from the sheets and blankets prisoners
burned out their windows during Hurricane Katrina to receive help.

a m n e s t y f o r p r i s o n e r s o f k at r i n a

i i . t h e l e ga l c a s e f o r a m n e s t y
Three international human rights treaties,
signed and ratified by the United States,
govern the fundamental rights and freedoms
that should have protected survivors of
Hurricane Katrina.56
The Supremacy
Clause of Article IV of the United States
Constitution sets forth that “all treaties
made…under the authority of the United
States shall be the supreme law of the land”
along with the Constitution and domestic
laws. Thus, adherence to the provisions
of these human rights treaties should be
no less stringent than to the Articles and
Amendments of the U.S. Constitution.57
Both the Convention on the Elimination
of All Forms of Racial Discrimination
(CERD), and the International Covenant
on Civil and Political Rights (ICCPR) are
to be implemented at the state and local, as
well as federal, levels. Therefore, they apply
directly to the municipal governments of
the city of the New Orleans and the Parish
of Orleans, the Louisiana state government,
and the United States government.
A. International Human Rights
Treaty Obligations
The Convention on the Elimination
of All Forms of Racial Discrimination
(CERD) resolves “to adopt all necessary
measures for speedily eliminating racial
discrimination in all its forms and
manifestations, and to prevent and combat
racist doctrines and practices.”58
The International Covenant on Civil
and Political Rights (ICCPR) recognizes
“the inherent dignity and…the equal and
inalienable rights of all members of the
human family.”59 And the Convention
Against Torture and other Cruel,
Inhuman or Degrading Treatment or
Punishment (CAT) calls for more effective
a special report


measures to be taken in the struggle against
torture and cruel, inhuman and degrading
treatment, and includes specific provisions
pertaining to law enforcement practices
and incarceration.60 The response of local,
state and federal government to Hurricane
Katrina finds the U.S. in breach of all three
of these treaties. Many non-governmental
organizations throughout the impacted
region and the world have recognized
and documented the widespread human
rights abuses suffered disproportionately
by African American and poor residents of
New Orleans during and after the storm.61
The relevant provisions of CERD provide
a framework for race-related human rights
abuses that occurred during Hurricane
Katrina, and impose an obligation on
signatories including the United States to
ensure effective remedies and reparation
for these abuses. Article 2 sets forth
the fundamental obligations of CERD,
wherein States Parties to the treaty commit
to eradicating racially discriminatory
practices from public institutions and
pledge not to “sponsor, defend or support
racial discrimination.”
States Parties
must also review and nullify existing laws
which perpetuate racial discrimination,
and utilize “all appropriate means” to end
racial discrimination. Article 5 guarantees
equality before the courts and all institutions
administering justice, and the right to
security “against violence or bodily harm,
whether inflicted by government officials
or by any individual group or institution.”
Article 6 requires states to assure “effective
protection and remedies” against, and the
right to seek “just and adequate reparation”
for any acts of racial discrimination.
The ICCPR guarantees a fundamental
set of rights and freedoms, including to

d e c e m b e r 2007

self-determination, life, liberty and freedom
from torture.62 Several treaty provisions
pertain to the situation during and after
Hurricane Katrina. Article 2 mandates that
parties to the treaty provide an “effective
remedy to those whose rights are violated,
notwithstanding that the violation has been
committed by persons acting in an official
capacity.” Articles 9 and 10 declare the
“right to liberty and security of person” and
freedom from “arbitrary arrest or detention,”
while requiring that “all persons deprived of
their liberty shall be treated with humanity
and with respect for the inherent dignity of
the human person.” Article 14 guarantees
equal treatment before the law, including
the right to a “fair and public hearing,” to
be promptly informed of the details of one’s
case, to communicate with counsel, and to
prepare one’s defense. Article 26 requires
equal protection of the law, free from
discrimination based on race, color or any
other factor.
The CAT prohibits torture and cruel,
inhuman or degrading treatment wherein
severe pain and suffering” are “intentionally
inflicted,” whether for the purposes of
coercion, punishment or discrimination.
The treaty requires education and training of
public officials, including law enforcement;
regular and systematic review of
arrangements for the custody and treatment
of persons subjected to any form of arrest,
detention or imprisonment; and prompt
and impartial investigation into allegations
of torture or cruel, inhuman or degrading
Finally, “no exceptional
circumstances whatsoever,” including public
emergency, can justify the use of torture or
cruel, inhuman or degrading treatment.


B. Violations of International Treaty Second and Third Periodic Report to the
United Nations Human Rights Committee
The treatment of Prisoners of Katrina regarding compliance with the ICCPR and
constituted an egregious abrogation of their CAT, which stunningly failed to discuss
rights. The right to due process of law and the events surrounding Hurricane Katrina
freedom from arbitrary arrest or detention; despite being submitted three months
the right to have one’s case timely heard in after the storm, a coalition of human rights
an established tribunal or court of law; and advocates produced an exhaustive report
freedom from torture or cruel, inhuman documenting arrest practices and police
or degrading treatment, for example, apply brutality following Hurricane Katrina. The
in unique and essential ways to prisoners. report, In the Shadows of the War on Terror:
With the collapse of New Orleans’ already Persistent Police Brutality and Abuse in the
racist criminal justice system in the wake of United States, co-authored by members
the storm, racial discrimination within the of Columbia Law School’s Human Rights
Clinic, INCITE! Women of Color Against
system was even more glaring.
Many of the human rights violations Violence, and the American Friends Service
suffered by those who were
imprisoned before, during,
and after Hurricane Katrina
have been extensively
documented and reported
A comprehensive
account of the horrific and
life-threatening conditions
abandoned in OPP and
then sent to prisons around
the state, Abandoned and
Abused: Orleans Parish
Prisoners in the Wake of
Hurricane Katrina, was
compiled by the American
above: Orleans Parish Prison
Civil Liberties Union. This
report provides extensive documentation Committee, amongst others, implicates
of clear violations of Article 10 of the Articles 2, 4, 7 and 10 of the ICCPR.65
Given the extremely disproportionate
ICCPR, that “all persons deprived of their
liberty shall be treated with humanity and representation of African-Americans in
with respect for the inherent dignity of the OPP and amongst those who suffered police
human person,”63 and CERD’s Article 5 harassment and brutality in the weeks and
prohibition “against violence or bodily harm months following the storm, the above
whether inflicted by government officials or reports document violations of Articles
2, 5 and 6 of CERD, as well.66 Broadly,
by any individual group or institution.”64
In response to the federal government’s the criminalization and incarceration of

African-American residents of New Orleans
before, during and after Hurricane Katrina
violated CERD’s prohibitions on statesponsored racial discrimination. The treaty’s
requirement of equal treatment before the
law was flatly proscribed through racially
discriminatory arrest and incarceration
practices and denial of liberty and justice to
those who were imprisoned.
In light of these widespread violations,
CERD Article 6 mandates the assurance
of a remedy, and the right of reparation.
Similarly, Article 2 of the ICCPR demands
that parties to the treaty ensure an effective
remedy for anyone whose enumerated rights
are violated. To date, neither the state or
local governments
nor the federal
government has
these obligations.
The call for
CERD’s Article 6
requirement that
“just reparation”
individuals whose
and fundamental
freedoms are violated and ICCPR’s mandate
that parties to the treaty ensure an effective
remedy for anyone whose enumerated rights
are violated. In the past, Amnesty has been
used to expose and recognize human rights
violations and promote reconciliation
amongst impacted parties and those
responsible for the abuses.

a m n e s t y f o r p r i s o n e r s o f k at r i n a

iii. his toric al examples of amnes t y
The most well known example of a national
policy of amnesty occurred in South Africa
as that nation dismantled its own system of
racial apartheid. The newly elected Black
South African government established a
Committee on Amnesty as a fundamental part
of its Truth and Reconciliation Commission
(TRC).67 The TRC’s objective was to
promote national unity and reconciliation
through a process of establishing a complete
record of the human rights violations that had
transpired, granting amnesty to those who
made full disclosure of their participation

in abusive acts, establishing the whereabouts
or fate of victims, and providing victims the
opportunity to share their experiences and
be compensated. A grant of amnesty meant
that criminal proceedings were halted, any
conviction was void and deemed not to have
occurred, any sentence was terminated, those
who were imprisoned were immediately
released, and records of conviction were
Within the United States, a far-reaching
policy of amnesty in the form of Presidential
pardon was utilized by President Carter

in order to end all pending and future
prosecutions against Vietnam War resisters.
Carter’s act served as a blanket amnesty for all
who had or potentially could face draft evasion
charges.68 There was no formal application
process; prosecutions were simply halted or
never pursued, and records were cleared of all
draft evasion charges. Such a grant of blanket
amnesty could serve as a model for granting
pardon to a group of persons rather than on a
case-by-case basis.	

are the two most appropriate such remedies
available for prisoners of Katrina. Given the
gravity of the abuses suffered by prisoners of
Katrina and the uphill battle they already
face in order to rebuild their lives, a call for
Amnesty in the form of executive pardon
and expungement of criminal charges is
both appropriate and overdue. By halting
prosecutions, terminating prison sentences,
waiving fees and fines, and clearing criminal
records, the direct l and indirect effects of
Katrina-related arrests and incarceration
would be mitigated, and people’s ability
to return home and reestablish their lives
could be facilitated.
In making the case for pardon in another
context (for women who kill their batterers),
Linda Ammons articulates why the
“fallibility and inflexibility” of the legal and
criminal justice systems justify the power to
pardon convictions and grant clemency:

is not necessarily…considerate of circumstances
which may properly mitigate guilt (emphasis

i v . r e c o m m e n dat i o n s
In the context of Hurricane Katrina,
the call for amnesty is a call to address the
injustices suffered by those stranded in a
chaotic system, and ensure that those who
have charges pending or arrest or convictions
on their records for Katrina-specific “crimes”
can move forward with their lives. Today,
the frequent use of background checks,
particularly for housing and employment,
greatly jeopardizes displaced residents’ right
to return home. Individuals with a criminal
conviction or a pending case, as well as their
family members can be excluded from public
housing and job opportunities. In a postKatrina New Orleans, this is particularly
egregious. A blanket grant of amnesty
modeled on the TRC’s hearings in South
Africa or President Carter’s grant could
minimize the long-term consequences of
arrests, convictions, and imprisonment
before, during and after Hurricane Katrina.
In the alternative, Louisiana law provides
legal mechanisms whereby individuals can
gain something akin to amnesty. Executive
pardon and criminal record expungement
a special report


Executive clemency exists to afford relief
from undue harshness or evident mistake in
the operation or enforcement of the criminal
law. The administration of justice by the courts

d e c e m b e r 2007

Granting clemency, then, is in part an
acknowledgement that justice and the
interests of the public can be better served
outside the bounds of the traditional
criminal justice system.70
Executive pardon is a constitutionally
guaranteed remedy in Louisiana. La.
Const. Art. 4, § 5(E)(1) (2007). Section
15:572 of the Louisiana Revised Statutes
provides for the granting of two types of
pardon,71 the second of which, executive
pardon by the governor, is applicable for
prisoners of Katrina. La. Rev. Stat. Ann. §
15:572 et seq. (2003). The statute states in
relevant part: “The governor may…upon
recommendation of the Board of Pardons…
commute sentences, pardon those convicted
of offenses against the state, and remit fines
and forfeitures imposed for such offenses.”
§15:572(A). As such, the decision to grant
an executive pardon, while ultimately within
the authority of the governor, requires a

recommendation from the Louisiana Board 44:9(F). On the other hand, when records expungement, the case-by-case approach
of Pardons.
are ordered to be destroyed, references currently utilized will be prohibitively
Executive pardon has been interpreted thereto may not be made available to the time-consuming for a disaster of this scale,
by the Supreme Court of Louisiana as public and must be kept under lock and and masks the breadth of injustice that
restoring “the pardoned
must be accounted for. As
individual [to] a status of
a result, most prisoners of
innocence of crime.”
Hurricane Katrina will not
grant of pardon allows for
be adequately remedied
the destruction of all records
through these mechanisms.
of arrest and conviction for
A more appropriate and
the pardoned individual, so
effective solution would be
that the negative effects of
to create a reviewing body to
having a criminal record,
document the instances of
such as being barred from
abuse and injustice faced by
those incarcerated before,
educational assistance, social
during and after Hurricane
welfare benefits, holding
A review
certain licenses (such as
board should be tasked
for many employment
with documenting and
opportunities in health care
addressing the full scope of
above: Supporters pour out of Waton Memorial during Amnesty Weekend.
or to sell liquor), or serving
human and constitutional
on a jury, will no longer be felt. Additionally, key for administrative purposes only. See rights violations incarcerated persons
an executive pardon may result in monetary § 44:9(A)(2). In general, misdemeanor experienced during and after Katrina. It
compensation under limited circumstances, arrest records may be destroyed and felony should also scrupulously examine whether
if the conviction has been reversed or arrest records may be expunged. Although elected and judicial officials acted within
vacated, and the applicant has proven that expungement does not remove the event the scope of international treaty obligations
s/he is factually innocent. § 15:572.8.
from someone’s record in quite the same way and the Constitution when they made
For those who were arrested but as executive pardon—whereby an individual decisions such as to not evacuate Orleans
never convicted, record expungement is restored to “a status of innocence”—it can Parish Prison, to halt deadlines in all judicial
is a possible and meaningful remedy. similarly mitigate barriers such as to housing proceedings, and to detain people beyond
Procedures for the expungement of or employment.
release dates. Ultimately, a review board
municipal or parish ordinances or state
of could be empowered to issue a blanket grant
statutes (both misdemeanors and felonies) expungement and pardon do not go nearly of amnesty for those whose rights were
are set forth in Louisiana Revised Statutes far enough, they do represent Louisiana state violated, which would be more appropriate
Annotated section 44:9 (2007). This law examples of remedies relevant to the call than requiring case-by-case decision-making.
statute distinguishes between expungement for amnesty. Louisiana state law remedies A more effective means of granting amnesty
and destruction of records: “‘Expungement’ are time-consuming, costly, and narrow in and clearing people’s records of Katrinameans removal of a record from public scope. The pardon process requires that related charges is essential to honoring the
access but does not mean destruction of the each application be presented individually right of New Orleans residents to return
record. An expunged record is confidential, to, and granted by, the Governor. The cost home.
but remains available for use by law of criminal record expungement, for those
enforcement agencies, criminal justice who qualify, can be unreachable. And in the
agencies, [and state licensing boards.]” § cases of both pardon and criminal record

a m n e s t y f o r p r i s o n e r s o f k at r i n a


Granting an amnesty or pardon and
criminal record expungement would
not be the first unprecedented aspect of
Hurricane Katrina. The systematic way in
which thousands of people’s human and
constitutional rights were violated is equally
unparalleled in this country’s history.
Hurricane Katrina exposed the
deep poverty and inequality that is the
continuing legacy of our nation’s criminal
justice policies and racism – along with
the very human effects of how our society
invests in prisons and jail cells rather than
providing the support systems (education,
health care, housing, and infrastructure like
levees). Katrina illustrated the way we as
a nation increasingly deal with social ills:
police and imprison primarily poor Black
Widespread deprivation of liberty
was a prominent feature of the response
to Hurricane Katrina which has neither
received sufficient attention nor official
condemnation. Public recognition of this
reality should compel an official move to
grant Amnesty, and in some way, remedy
the injustice suffered by prisoners of Katrina
and their families.

c i t at i o n s

See, e.g., Laura Maggi, Inmate Lost in System

Resurfaces: After 13 Months He Gets His Day in

One OPP prisoner made daily reports

Prof. Bill Quigley’s power-point presentation,

the storm and the five days following. Her account

“Katrina – 18 Months Later,” available at: http://law.

of the utter failure of the Sheriff ’s plan can be found



katrina/testimonites-stmnt.html. An examination


See, e.g., New Orleans Mayor Orders Looting

of the conditions OPP prisoners faced is beyond

Crackdown, Assoc’d. Press, Sept. 1, 2005, http://

the scope of this paper, but has been exhaustively; Jodi Wilgoren,

documented by others. See, e.g. Am. Civil Liberties

Storm and Crisis: Voices From the Storm; What the

Union, Abandoned and Abused: Orleans Parish

Hurricane Didn’t Take, the Looters Did, N.Y. Times,

Prisoners in the Wake of Hurricane Katrina (2006);

Sept. 12, 2005, at A14.

Human Rights Watch, New Orleans: Prisoners
Abandoned to Flood Waters (2005).


See, e.g., In Depth:: Hurricane Katrina:

Hurricane Katrina Timeline, CBCNEWS, Sept.

5 ACLU at 13.

4, 2005,

6 Id.

katrina/katrina_timeline.html (reporting that, on

7 Transcript of CNN Coverage of Press

September 1, “violence in the region escalate[d],

Conference, Aug. 28, 2005, available at http://

with rescue boats being stolen by marauders, and

shots fired at helicopters that [were] bringing out


hospital patients”).

8 Rachel Jones, staff attorney with the Louisiana


See The People’s Hurricane Relief Fund and

Capital Defense Center and member of the team of

Oversight Coalition, Justice After Katrina Rally

defense attorneys who spearheaded efforts to locate

Dec. 9-10,

prisoners and file petitions for their release in the

org//?p=51 (“To the major media, Blacks seeking

months following the storm, used this phrase in a

and finding food from abandoned stores were

conversation with the author on July 18, 2007.

looters, while whites doing the same were identified

9 This number is based on the files and
approximation of Phyllis Mann, a criminal defense

as having found food.”).

The Bridge to Gretna: Why Did Police

lawyer who led a team of attorneys in efforts to locate

Block Desperate Refugees From New Orleans?, 60

evacuated prisoners and petition for their release.

Minutes, Dec. 18, 2005,

Phyllis E. Mann, Hurricanes Katrina and Rita—A


Year Later in Louisiana, Champion 6, 7 (2006).


10 These case examples are taken from newspaper


Jim Dwyer & Christopher Drew, Storm and

accounts, the ACLU report cited supra footnote 1,

Crisis: Lawlessness; Fear Exceeded Crime’s Reality

and personal testimonies given to Critical Resistance.

in New Orleans, N.Y. Times, Sept. 29, 2005, at A1;

See also, Jessica Azulay, Abuse, Forced Labor

Matt Welch, They Shoot Helicopters, Don’t They?,

Rampant in New Orleans Justice System, The New

Reason Magazine, Dec. 2005.

Standard, Oct. 15, 2005, http://newstandardnews.


Dwyer & Drew, supra note 48.



Id.; and see Jere Longman, Storm and Crisis:


This number provided by the records of Rachel

Jones, staff attorney with the Louisiana Capital

Gwen Filosa, ACLU Sues Over Arrest, New Orleans

Assistance Center and member of the team who filed

Times Picayune, Jan. 27, 2007.

the habeas petitions, on file with the author.

Though Katrina impacted a large geographic

For an illustration of this phenomenon, see

documenting her terrifying experiences on the day of

Court, New Orleans Times-Picayune, Nov. 29, 2006;



12, Military Due to Move in to New

The Police; New Orleans Police Superintendent Quits
Amid Criticism, N.Y. Times, Sept. 28, 2005, at A25.

See Jonathon Simon, Wake of the Flood: Crime,

Disaster and the American Risk Imaginary after
Katrina, Issues in Legal Scholarship:: Catastrophic

area, this report focuses on New Orleans/Orleans

Orleans, (September 2, 2005), http://edition.cnn.

Risks: Prevention, Compensation, and Recovery, art.

Parish as one of the clearest examples of violations of


4 at 4 (2007),

human rights requiring remedy.



Transcript of CNN Coverage of Press

13, CNN Newsnight Aaron


See, e.g., Welch, supra note 48 (quoting Tiger

Woods: “it’s just people are

Conference, Aug. 28, 2005, http://transcripts.cnn.

Brown, New Orleans Police Chief Eddie Compass

behaving, with the shootings and now the gang rapes


Announced Retirement,

and the gang violence and shooting at helicopters


who are trying to help out and rescue people.”).

a special report


d e c e m b e r 2007


in the wake of Katrina, see Havidan Rodriguez,

Political Rights was signed on October 5, 1977 and

conditions prisoners suffered at Orleans Parish

Joseph Trainor and Enrico Quarantelli, Rising to

ratified on June 8, 1992. The Convention Against

Prison, Camp Greyhound, and prisons around the

the Challenges of a Catastrophe: The Emergent and

Torture and Other Cruel, Inhuman or Degrading

state, see generally ACLU, supra note 1.

Prosocial Behavior Following Hurricane Katrina, 604

Treatment or Punishment was signed April 18, 1988

The ANNALS of the American Academy of Political

and ratified October 21, 1994.



For an exhaustive account of the abusive

Editorial, Looter Label Inappropriate According

to Respondents of a National Poll, La. Weekly, Nov.

and Social Science 82-101 (2006).


The United States issued “Reservations” to

7, 2005 (quoting Tamika Middleton, community



these treaties, such that they do no extend beyond

organizer with Critical Resistance).


See Simon, supra note 51, at 1.

the terms of our Constitution. In other words, the


See Simon, supra note 51, at 9 (“[O]fficials

treaties cannot hold the government of the United


Gwen Filosa, Looting Suspects Stationed at

Greyhound Terminal, New Orleans Times-Picayune,

from the White House on down suggested that the

States (or any local or state government) accountable

Oct. 9, 2005.

crime and lawlessness was in part responsible for the

for any right, or violation thereof, not already

failure of adequate provision for the refugees. […F]

protected by our Constitution. For a full list of the

With Jails Flooded, Bus Station Fills the Void, N.Y.

acing a storm of criticism for their lack of effective

Reservations, Understandings and Declarations

Times, Sept. 7, 2005, at A20.

preparation…officials repeatedly issued tough

issued by the United States with respect to each


Alex Berenson, Storms and Crisis: Prisoners;

Tetlow & Garrett, supra note 31, at 144;

sounding statements about shooting and killing

of these treaties, please visit the “Ratifications and

Illegal Imprisonment Not Just For ‘Suspected

looters….That [this posturing] should be successfully

Reservations” page of the Office of the United

Terrorists’—New Orleans Man Held For 7

deployed in the face of a disaster which has

Nations High Commissioner for Human Rights

Months After Katrina, Mother Jones, Jan. 29,

underlined the importance of basic civil governance

website, at:


was sobering but not surprising.”).




Gwen Filosa, ACLU Sues Over Arrest, New

Orleans Times-Picayune, Jan. 27, 2007, at 1.

By September 8, more than 200 arrests had


Jessica Azulay, Abuse, Forced Labor

Rampant in New Orleans Justice System, The New
Standard, Oct. 15, 2005, http://newstandardnews.


Preamble to CERD, available at http://www.

Preamble to ICCPR; available at http://www.

been made: 178 for “looting,” 26 for possession of



stolen vehicles, 20 for resisting arrest, 14 for theft



available at

and 9 for attempted murder. Garrett & Tetlow, supra




note 31, at 145.




See generally Mann, supra note 32; Garrett &



See generally, Convention Against Torture,

As indicated by the number of organizational




See Simon, supra note 51, at 1.


Garrett & Tetlow, supra note 31, at 143.


Mann, supra note 32, at 6.



UC Berkeley Professor Jonathon Simon used




this word to describe law enforcement efforts in an


Garrett & Tetlow, supra note X, at 139

interview in Berkeley, Cal. (Apr. 19, 2007).


Id. at 145.

fall within the framework of Article 4, which allows

Gwen Filosa, Looting Suspects Stationed at



for derogation from the treaty “in time of public

Greyhound Terminal, New Orleans Times-Picayune,


Id. at 149.

emergency which threatens the life of the nation”

Oct. 9, 2005; Camp Greyhound: Outpost of Law and


As a means of comparison, consider San

and only “to the extent strictly required by the


Tetlow, supra note 31.

signatories to such reports as Abandoned and Abused,
ACLU supra note 3; In the Shadows of the War on


Notably, the events surrounding Katrina do not

Order, USA Today,

Francisco: the District Attorney must make a

exigencies of the situation.” (emphasis added). Even


decision within 72 hours on whether or not to

a disaster of Hurricane Katrina’s scale does not satisfy


prosecute someone brought in on a felony offense;

this criterion.


Filosa, supra note 64.

those arrested on misdemeanor charges must go to



Storm Victims Steal School Buses to Flee New

court on the next business day.


CERD Art. 5(b).


See, In the Shadows of the War on Terror:

Orleans,, Sept. 2, 2005, http://www.


Mann, supra note 32, at 8.; Jared


All of these treaties can be found in their

ACLU, supra note 2; ICCPR Art. 10(1).

Persistent Police Brutality and Abuse in the United

Wadley, Advocates Seek Due Process for Hundreds

entirety on the website of the Office of the High

States – A report prepared for the United Nations

of Incarcerated Hurricane Victims, The University

Commissioner for Human Rights: www.unhchr.

Human Rights Committee on the occasion of its review

Record Online, Jan. 23, 2006, http://www.umich.

ch/html/intlinst.htm. The Convention on the

of The United States of America’s Second and Third


Elimination of All Forms of Racial Discrimination

Periodic Report to the Human Rights Committee

was signed September 28, 1966 and ratified October

(May 2006), available at:

21, 1994. The International Covenant on Civil and



For a detailed analysis of this trend, and of

the patterns of prosocial behavior that emerged


a m n e s t y f o r p r i s o n e r s o f k at r i n a


The provisions of the ICCPR guard against

many of the same human rights violations as does

more significant.

Promotion of National Unity and

felony conviction; the effect is to restore “all rights of
citizenship and franchise” to that person. This type

CERD, and also prohibit discrimination on the

Reconciliation Act, Act No. 34 of 1995, available at:

of pardon is provided for statutorily under Louisiana

basis of race. Yet the creation of CERD as a separate

Revised Statutes Annotated section 15:572.

treaty was not merely redundant. By explicitly


See Harold Jordan, What Happened to

highlighting discrimination on the basis of race,

Vietnam Era War Resisters?, American Friends

CERD underscores both the continued prevalence

Service Committee,

of such discrimination and the international


community’s commitment to eradicate it. The fact



State v. Lee, 171 La. 744, 746 (1931).

See Discretionary Justice: A Legal and Policy

that the events of Hurricane Katrina find the United

Analysis of a Governor’s Use of the Clemency Power

States in such egregious abrogation of both CERD

in the Cases of Incarcerated Battered Women, 3 J.L. &

and ICCPR demonstrates the extent to which we,

Pol’y 1, 30-31 (1994).

as a nation, have much work to do to eliminate


Id. at 35.

racism. The severity of abuses which occurred in


The first type of pardon, automatic, or “first

the days, months and years since the storm make

offender” pardon, is granted automatically when an

the imperative of remedying & repairing these

individual completes the sentence for his/her first

abuses—to whatever extent possible—that much

a special report


d e c e m b e r 2007




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