Critical Resistance Report Amnesty for Prisoners of Katrina Dec 2007
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Amnesty 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 www.cr iticalresistance .or g table of contents Introduction 1 Repor t Over view 1 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 4 D. Legal Limbo 5 II. The Legal Case for Amnesty 6 A. Inter national Human Rights Treaty Obligations 6 B . Violations of Inter national Treaty Obligations III. Historical Examples of Amnesty IV. Recommendations Conclusion 10 Citations 10 8 8 7 introduction 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 Katrina. 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 arrest. 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 condemnation. 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 1 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 a special report members and loved ones was already taking on communities was severely heightened by Katrina. 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 “unacceptable.” • 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 2 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 custody. 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, 2005. • 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 truck. • 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 3 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 pass.18 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. 23 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 or appropriate response begs the question, as Professor Jonathan Simon implies, whether this 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 4 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 42 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 stations, courthouses “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 dates.55 a conviction on their above: Burn marks on the side of Orleans Parish Prison from the sheets and blankets prisoners record.46 burned out their windows during Hurricane Katrina to receive help. 5 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 treatment. Finally, “no exceptional circumstances whatsoever,” including public emergency, can justify the use of torture or cruel, inhuman or degrading treatment. 6 B. Violations of International Treaty Second and Third Periodic Report to the United Nations Human Rights Committee Obligations 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 on. A comprehensive account of the horrific and life-threatening conditions faced by prisoners 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 7 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 of Louisiana nor the federal government has complied with these obligations. The call for Amnesty falls within the framework of CERD’s Article 6 requirement that “just reparation” be afforded individuals whose human rights 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 expunged. 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 added).69 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 8 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 72 innocence of crime.” A 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 employment, housing, those incarcerated before, educational assistance, social during and after Hurricane welfare benefits, holding Katrina. 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 While Louisiana’s remedies 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 9 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 4 conclusion 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 communities. 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 1 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 loyno.edu/~quigley/flash.php?id=katrina_18mos. at: http://criticalresist.live.radicaldesigns.org/ swf. katrina/testimonites-stmnt.html. An examination 15 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 www.msnbc.msn.com/id/9063708; 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). 16 See, e.g., In Depth:: Hurricane Katrina: Hurricane Katrina Timeline, CBCNEWS, Sept. 5 ACLU at 13. 4, 2005, http://www.cbc.ca/news/background/ 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 transcripts.cnn.com/TRANSCRIPTS/0508/28/ shots fired at helicopters that [were] bringing out bn.04.html. hospital patients”). 8 Rachel Jones, staff attorney with the Louisiana 17 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, http://cluonline.live.radicaldesigns. 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.”). 18 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, http://www.cbsnews.com/ Phyllis E. Mann, Hurricanes Katrina and Rita—A stories/2005/12/15/60minutes/main1129440. Year Later in Louisiana, Champion 6, 7 (2006). shtml. 10 These case examples are taken from newspaper 19 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. 20 Dwyer & Drew, supra note 48. net/content/index.cfm/items/2475. 21 Id.; and see Jere Longman, Storm and Crisis: 11 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; 2 14 12 CNN.com, Military Due to Move in to New The Police; New Orleans Police Superintendent Quits Amid Criticism, N.Y. Times, Sept. 28, 2005, at A25. 22 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 com/2005/WEATHER/09/02/katrina.impact/ 4 at 4 (2007), http://bepress.com/ils. human rights requiring remedy. index.html. 3 Transcript of CNN Coverage of Press 13 CNN.com, CNN Newsnight Aaron 23 See, e.g., Welch, supra note 48 (quoting Tiger Woods: “it’s just unbelievable...how 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 com/TRANSCRIPTS/0508/28/bn.04.html. Announced Retirement, http://transcripts.cnn.com/ and the gang violence and shooting at helicopters TRANSCRIPTS/0509/28/asb.02.html who are trying to help out and rescue people.”). a special report d e c e m b e r 2007 10 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. 24 25 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). 57 The United States issued “Reservations” to 7, 2005 (quoting Tamika Middleton, community 39 Id. these treaties, such that they do no extend beyond organizer with Critical Resistance). 40 See Simon, supra note 51, at 1. the terms of our Constitution. In other words, the 41 See Simon, supra note 51, at 9 (“[O]fficials treaties cannot hold the government of the United 26 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 27 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: http://www.ohchr.org/english/bodies/ 2007, http://www.motherjones.com/mojoblog/ was sobering but not surprising.”). ratification/index.htm 28 archives/2007/01/3374_illegal_impriso.html. 29 Gwen Filosa, ACLU Sues Over Arrest, New Orleans Times-Picayune, Jan. 27, 2007, at 1. 30 By September 8, more than 200 arrests had 42 Jessica Azulay, Abuse, Forced Labor Rampant in New Orleans Justice System, The New Standard, Oct. 15, 2005, http://newstandardnews. net/content/index.cfm/items/2475. 58 Preamble to CERD, available at http://www. ohchr.org/english/law/cerd.htm. 59 Preamble to ICCPR; available at http://www. ohchr.org/english/law/ccpr.htm. been made: 178 for “looting,” 26 for possession of 43 Id. stolen vehicles, 20 for resisting arrest, 14 for theft 44 Id. available at http://www.unhchr.ch/html/menu3/ and 9 for attempted murder. Garrett & Tetlow, supra 45 Id. b/h_cat39.htm. note 31, at 145. 46 Id. 47 See generally Mann, supra note 32; Garrett & 60 61 See generally, Convention Against Torture, As indicated by the number of organizational 31 Id. 32 See Simon, supra note 51, at 1. 33 Garrett & Tetlow, supra note 31, at 143. 48 Mann, supra note 32, at 6. Terror, http://www.afsc.org/news/2006/human- 34 UC Berkeley Professor Jonathon Simon used 49 Id. rights-report.htm. this word to describe law enforcement efforts in an 50 Garrett & Tetlow, supra note X, at 139 interview in Berkeley, Cal. (Apr. 19, 2007). 51 Id. at 145. fall within the framework of Article 4, which allows Gwen Filosa, Looting Suspects Stationed at 52 Id. for derogation from the treaty “in time of public Greyhound Terminal, New Orleans Times-Picayune, 53 Id. at 149. emergency which threatens the life of the nation” Oct. 9, 2005; Camp Greyhound: Outpost of Law and 54 As a means of comparison, consider San and only “to the extent strictly required by the 35 Tetlow, supra note 31. signatories to such reports as Abandoned and Abused, ACLU supra note 3; In the Shadows of the War on 62 Notably, the events surrounding Katrina do not Order, USA Today, http://www.doc.louisiana.gov/ Francisco: the District Attorney must make a exigencies of the situation.” (emphasis added). Even Press%20Releases/KATRINA/Press%20Releases/ decision within 72 hours on whether or not to a disaster of Hurricane Katrina’s scale does not satisfy USA%20Today%20Detention%20Facility.pdf. prosecute someone brought in on a felony offense; this criterion. 36 Filosa, supra note 64. those arrested on misdemeanor charges must go to 63 37 Storm Victims Steal School Buses to Flee New court on the next business day. 64 CERD Art. 5(b). 65 See, In the Shadows of the War on Terror: Orleans, Local6.com, Sept. 2, 2005, http://www. 55 Mann, supra note 32, at 8. local6.com/news/4929516/detail.html; Jared 56 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 edu/~urecord/0506/Jan23_06/16.shtml. 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: http://www.afsc.org/ 21, 1994. The International Covenant on Civil and news/2006/human-rights-report.htm. 38 For a detailed analysis of this trend, and of the patterns of prosocial behavior that emerged 11 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 66 The provisions of the ICCPR guard against many of the same human rights violations as does more significant. 67 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 http://www.doj.gov.za/trc/legal/act9534.htm Revised Statutes Annotated section 15:572. treaty was not merely redundant. By explicitly 68 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, http://www.afsc.org/youthmil/ of such discrimination and the international conscientious-objection/Vietnam-war-resisters.htm. community’s commitment to eradicate it. The fact 69 72 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 70 Id. at 35. racism. The severity of abuses which occurred in 71 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 12