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Friday, August 20, 2021

Delta Variant Infiltrating Michigan Prisons

by Efrén Paredes, Jr.

"No person should fear for his or her life each day as a result of the carelessness to basic human needs." (Ariel Berkowitz, "(Un)Masking the Truth -- The Cruel and Unusual Punishment of Prisoners Amidst the COVID-19 Pandemic, 37 Touro L. Rev. 347, 373 (2021)).

In an August 3, 2021 memorandum sent to people exiled in its carceral facilities Michigan Department of Corrections (MDOC) Central Office staff wrote:

"We have begun to see an uptick in prisoner [COVID-19] cases after having just two positive cases among the prisoner population this past weekend. Since Friday, there have been 25 positive cases at nine facilities."

A subsequent memorandum revealed that positive tests at two of the prisons were false positives. It attributed the errors to defective reagents used during the testing process. Despite the errors the virus still quickly reemerged in seven prisons in a short span of time. Since then the MDOC has issued no new information regarding infection updates to people locked away in its prisons.

The MDOC website, however, paints a different picture of the problem. According to the latest data available to the public on August 18, 2021 an additional 525 people have tested positive for COVID-19 in Michigan prisons during the past fourteen days. An average case count of 37.5 per day.

The numbers are eerily reminiscent of March 2020 when the virus began exploding in the state's carceral facilities. The first wave left an astonishing 78% of people incarcerated in MDOC prisons infected and 143 people succumbed to the biological contagion.

The unsettling new data reveals an ominous COVID-19 recrudescence infiltrating the state's carceral facilities which the pandemic has previously exposed are bacteria factories for replication of infectious disease.

To the outside observer the number of new infections may not seem like a large number. In a sea of people living in unsanitary crowded spaces they are unable to properly social distance in, however, the number represents a viral tinderbox.

In an article titled, "Mass Incarceration, Meet COVID-19," Sharon Dolovich, Professor of Law, UCLA School of Law, wrote:

"From the earliest days of the pandemic, it was clear that the novel coronavirus posed an outsized danger to the more than two million people locked inside America's prisons and jails."

She added, "By summer, infection rates in state and federal prisons dwarfed national rates by a ratio of 5.5 to 1, and, accounting for age, people in prison were dying at three times the rate of society as a whole." ("Mass Incarceration, Meet COVID-19," 87 U. Chi. L. Rev. Online 4 (2020)).

"[T]he largest clusters of infection have occurred within prisons and jails, distantly followed by meatpacking plants and nursing homes. All five of the top five clusters of COVID-19 infections around the country are in carceral facilities[.]" (Camila Strassle & Benjamin E. Berkman, "Prisons and Pandemics," 57 San Diego l. Rev. 1083, 1084 (2020)).

According to Eda Katharine Tinto and Jenny Roberts, authors of "Expanding Compassion Beyond the COVID-19 Pandemic," 18 Ohio St. J. Crim. L. 575, 577 (2021): "By January 26, 2021, more than 365,000 prisoners tested positive for COVID-19, and 2,314 prisoners died as a result. Infection rates within prisons remain high and continue to rise."

This staggering number made prisons the epicenter of the pandemic and amounted to more deaths of incarcerated people "than has been produced by carrying out formal death sentences in the United States for the entire period from 2001 to 2020." (Douglas A. Berman, "The New Death Penalty: COVID Has Now Killed More US Prisoners in Months Than the US Death Penalty Has in the Last Two Decades," Sent'g L. & Pol'y (Aug. 23, 2020, 11:23 AM)).

HOW DID THIS HAPPEN?

The viral spread occurring inside America's fortresses of seclusion has been deliberately obscured from the public consciousness in an effort to prevent people from recognizing the sheer danger prisons present to human life.

It has also been hushed to veil the morally reprehensible refusal of lawmakers to create a pathway to reduce the population density in carceral facilities as a strategy to obviate a deadly deluge of disease transmission.

It is lost on them that "[t]he contagion-rich environment of jail and prison means a detained [person] may never come home, and [her/his] community may suffer the long-term effects of his permanent absence." (Jenny E. Carroll, "Safety, Crisis, and Criminal Law," 52 Ariz. St. L.J. 769, 788 (2020)).

Media reporting, academic journal articles, and anecdotal accounts have shined a searing light on the painful fact that state officials were slow to respond to protecting people in prisons when the pandemic hit eighteen months ago.

Michigan prisons became ravaged by the virus during a feckless period of inaction before people were provided with masks, began being tested for COVID-19, and provided adequate medical care. Many people were initially returned to their housing units after reporting symptoms of the airborne communicable disease which engendered further spread of infection.

It also took weeks before the practice of having hundreds of people eating closely together in crowded dining halls was suspended at several prisons and meals were safely distributed to people in containers to consume in their living area.

DELTA VARIANT ENTERS THE PICTURE

The latter is of substantial importance because the COVID-19 Delta variant, which is primarily transmitted through proximity and shared air, has a viral load one thousand times greater than the first iteration of the disease.

It is exponentially more easily transmissible than the original wild type Coronavirus and is particularly pernicious because of its ability to turn off a person's immune system long enough to overwhelm them with infection. 

The Delta variant is raging across the nation and infection rates continue to climb. It now accounts for 99% of U.S. COVID-19 cases. August 17, 2021 the country reached 139,872 average positive daily infections, a 600% spike in cases in just the past month, according to data obtained from Johns Hopkins University.

The CDC recently reported that there are currently 80,000 people being hospitalized nationwide due to complications from COVID-19 -- the highest number since February. There were also over 5,000 deaths during the past week, averaging 820 per day. It is a 57% increase from the previous week and more than triple the number of deaths in early July.

As of August 4, 2021 only 64% of people incarcerated in Michigan prisons have been vaccinated, according to MDOC data. Over 11,000 -- or one-third -- of the prison population remains unvaccinated and highly susceptible to contracting/recontracting COVID-19.

This is very troubling in light of a recent CDC study of an outbreak in Massachusetts which found there was no significant difference between the COVID-19 viral loads of fully vaccinated people and those of unvaccinated people.

Last week CDC Director Dr. Rochelle Walensky stated we can expect to see tens of thousands of Delta variant breakthrough cases, meaning fully vaccinated people being infected with the virus. As of today there have been 248,000 breakthrough cases nationwide.

These facts, coupled with the Delta variant's screaming level of transmission and virulent viral load, vastly elevate the threat of a COVID-19 firestorm sweeping through the carceral system once again.

Some argue vaccinations will help reduce hospitalizations and deaths for those who contract the disease. While partially true, it ignores the reality that it won't prevent them from the substantial risk of experiencing "long COVID," a term commonly referred to as long-term physical, psychiatric, and neurological effects.

"Studies estimate that long COVID may affect between 10 percent and 30 percent of adults infected with the [C]oronavirus. ... Some symptoms resemble aftereffects of concussions and other brain injuries." (Pam Belluck, "This Is Really Scary," The New York Times (Aug. 8, 2021)).

In a disturbing study published in The Lancet medical journal last month researchers reported finding that COVID-19 can cause 200 symptoms in ten different bodily organs. In places like prisons that act as vectors or hotspots for transmission of the virus the potential for this to occur is far greater than for members of the general public.

LIVING IN PRISON DURING THE COVID-19 ERA

Unlike vaccinated people in the free world who can socially distance in carceral facilities it's a virtual impossibility to do in most areas, diminishing vaccine protection. "The physical set-up of virtually all prisons is inherently conducive to the spread of COVID-19." (Tinto & Roberts, supra at 576).

The confluence of a respiratory pathogen in congregant living conditions plagued by overcrowding, poor ventilation, people eating in close proximity to one another in dining halls, and using shared utilities like showers, toilets, and sinks are a lethal combination creating a super-spreader environment. (See Elizabeth Barnert et al., "Prisons: Amplifiers of the COVID-19 Pandemic Hiding in Plain Sight," 110 AJPH 964 (2020)).

In many housing units dozens of people sleep close to one another in bunk beds or in barracks-style open bay areas only a few feet apart.

Vulnerable people in carceral facilities are unable to extricate themselves from being bathed in COVID-19 and they are defenseless to protect themselves with effective masks. "In dramatic fashion, the pandemic illuminates the urgent need to drastically reduce the number of people behind bars in prisons and jails." (Kristen Nelson & Jeanne Segil, "The Pandemic as a Portal," 98 Denv. L. Rev. 337, 340 (2021)).

A year ago I sounded the alarm about the propensity for a COVID-19 surge in Michigan prisons in a series of articles before the virus engulfed the prison system. Television, radio, print, and online news media outlets echoed this reporting as well.

To protect the health and safety of people incarcerated in Michigan prisons the MDOC needs to end double-bunking, separate all beds in congregant living areas by six feet, and provide incarcerated people with proper life-saving N95 masks.

Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, and other respected epidemiologists argue that N95 masks are the only masks that can effectively protect someone from the Delta variant.

Three-layered masks are helpful but not as effective as N95 masks. This is especially true in areas where virus transmission is particularly high like in carceral facilities.

In a recent CNN interview Michael Osterholm, Director, Center for Infectious Disease Research and Policy, University of Minnesota, stated that as a general rule if you can smell smoke through a mask you're wearing the mask is too porous to effectively protect against the Delta variant.

COVID-19 KNOWS NO BORDERS

"From a global perspective, coronavirus is an issue that impacts and threatens us all." (U.S. Congresswoman Eddie Bernice Johnson & Lawrence J. Trautman, "The Demographics of Death: An Early Look at COVID-19, Cultural and Racial Bias in America," 48 Hastings Const. L.Q. 357, 361 (2021)).

According to the World Health Organization, COVID-19 can "act as a source of infection, amplification and spread of infectious disease within and beyond prisons." (Regional Office for Eur., World Health Org., "Prevention and Control of COVID-19 in Prisons and Other Places of Detention" 1 (2020)).

An airborne virus like COVID-19 flourishes in carceral facilities. It also has the capacity to have a profound spillover effect in neighboring cities and towns, thereby becoming a dangerous driver of community spread. Employees enter prisons by the thousands and return to their communities each day where they live and interact with family and friends.

"If COVID has taught us anything, it is that our collective failure to recognize the embeddedness of carceral institutions in the broader community and to ensure humane conditions for those individuals living inside is not only cruel but also self-defeating. When people are incarcerated, they do not disappear. Despite high walls, the facilities to which they are removed are still very much within society itself." (Dolovich, supra at 34)

RECOGNIZING HUMAN DECENCY

Nationwide demonstrations during the summer of 2020 around the disproportionate police killings of unarmed people of color sparked serious conversations about racial injustice. They also revealed the brutal impact prisons have on the lives of the 2.3 million people they cage.

The use of incarceration as the primary instrument of social control has been normalized far too long. The false and persistent narratives of people behind bars have demonized and reduced them to their worst mistake. This alienation or "othering" characterizes them as unworthy or incapable of redemption and subsequently leads to their objectification.

According to James M. Binnall, author of the article, "Respecting Beasts: The Dehumanizing Quality of the Modern Prison and an Unusual Model for Penal Reform," 17 J.L. & Pol'y 161, 162 (2008)): "Almost unanimously, the managerial regimes that operate today's prisons view prisoners as commodities, unworthy of rehabilitative efforts."

There is a direct through line between this distorted thinking and the dehumanization of incarcerated people. The absence of compassion results in the devaluing of life and protracted human suffering.

This nexus not only ignores the inherent dignity of people trapped in prisons, it also prevents lawmakers and carceral facility administrators from reducing the crowded living conditions that serve as incubators for the proliferation of deadly diseases like COVID-19.

As the world was fixated on the Derek Chauvin trial in the Spring of 2021, the Minnesota police officer charged with the death of George Floyd, one of the most repeated refrains the world heard was "when a person is in the custody of law enforcement, they are in their care."

The same can be said about the State of Michigan and MDOC -- the people in their custody are in their care.

WHERE DO WE GO FROM HERE?

If the past is prologue we know that "the price of inaction given the extreme vulnerability of prisons and jails to the spread of infectious diseases has never been higher." (Mirko Bagaric, Peter Isham & Jennifer Svilar, "The Increased Exposure to Coronavirus (COVID-19) for Prisoners Justifies Early Release" 48 Pepp. L. Rev. 121, 141 (2021)).

The MDOC's silence about the rise of positive COVID-19 tests in Michigan prisons is dangerously misleading incarcerated people to believe they are not entering a new surge of positive infections and making them less fearful about contracting the virus.

Previous to its August 4, 2021 message it had been months since the MDOC had engaged in outreach with incarcerated people to discuss COVID-19 or encourage vaccinations despite low vaccination numbers behind bars.

The absence of an MDOC vaccine messaging campaign has prevented potentially thousands of immunizations and diminished their value. It has likely also produced the unintended consequence of contributing to an increase of viral transmission in prisons.

Many hope that lawmakers and MDOC administrators learned from the first wave of the pandemic and aren't recklessly naive to believe that making the same mistakes will produce different results.

They need to also course-correct about being silent regarding rising infection numbers with the incarcerated population and engage in a robust vaccine outreach campaign to help stem further virus transmission..

The first time the MDOC had a playbook for protecting incarcerated people from a contagious airborne disease pandemic and didn't use it (i.e., Exec. Office of the President of the United States, "Playbook for Early Response to High-Consequence Emerging Infectious Disease Threats and Biological Incidents" (2016)).

The document produced by the Obama administration three years prior to the COVID-19 pandemic offered "guidelines to correctional facilities regarding how to stop the spread of the virus and how to deal with issues such as Personal Protective Equipment (PPE) and the use of hand sanitizer that has at least 60% alcohol content." (Gabriela M. Guzman, "An International Comparative Study of the United States, the Netherlands, and Mexico: Pandemic Responses in Prisons and Correctional Institutions During the 1918 Spanish Flu and the Era of COVID-19," 27 ILSA J. Int'l & Comp. L. 343, 358 (2021)).

Eighteen months -- and 26,731 incarcerated people infected with COVID-19 later -- state actors now have a dearth of scientific and experiential data and resources to inform their decision-making.

Not being animated to implement every available public health measure to prevent the specter of another health catastrophe inside the state's prisons will not only be carelessly negligent, it will be deliberately indifferent and tantamount to complicity.

(Efrén Paredes, Jr. is a journalist and social justice changemaker who has been incarcerated in Michigan for 32 years. He works at the intersection of criminal penal reform, racial justice, and movement-building. You can find links to his writings, TV news/radio/podcast interviews, and activism by visiting http://fb.com/Free.Efren.)

Wednesday, June 16, 2021

Praise for "Halfway Home: Race, Punishment, and the Afterlife of Mass Incarceration" by Reuben Jonathan Miller (Little, Brown and Company, 2021)

by Efrén Paredes, Jr.

"[T]his is how social death works: You become a nonperson, someone whose existence is superfluous. You're invisible, hidden in some cage just outside the city or within it or perhaps hundreds of miles from home. The effects are all the same. You are a number among a bunch of other numbers. You might have a family. You might do great things in your community. You might help others, regularly. You might be a person of great faith. But you are dead to the world that matters to you most. The prison robs you of your importance."

The above quote is from Reuben Jonathan Miller's book titled "Halfway Home: Race, Punishment, and the Afterlife of Mass Incarceration." Miller is a sociologist, criminologist, social worker, and University of Chicago professor.

"Halfway Home" is a searing indictment of the pernicious ways that mass incarceration destabilizes lives by disproportionately demonizing, marginalizing, and warehousing people of color and members of poor and underserved communities.

The book highlights how lawmakers have erected barriers that prevent the 600,000 returning citizens marked by incarceration who are released from prisons each year from succeeding through the creation of 48,000 laws, policies, and administrative sanctions.

Miller also critiques the plethora of interlocking problems that have resulted in America becoming the country that cages more citizens than any other on the planet. His rich, descriptive narrative allows the reader to explore the world of prison and its "afterlife" in a very moving way.

In the words of Pulitzer-Prize winning author Heather Ann Thompson, "As Miller shows so powerfully [in his book], the damage done by this system has been so insidious, and so comprehensive, that certain Americans are always, in effect, doing time."

One of the qualities that makes this book so compelling is Miller's proximity to the problem. His father and brother were incarcerated, and he was actively a part of his brother's support network throughout his incarceration and release. He witnessed firsthand what families of incarcerated people experience during that time.

He also served as a Chaplain inside Chicago's notorious Cook County Jail where he interacted with thousands of people in detention and was able to directly observe how they were treated by their jailers.

The imprint of incarceration on Miller's life allows him to see and understand things other ethnographers often miss or overlook when they study the caging of citizens. He writes not only as a brilliant scholar, but also as a credible witness.

I'm critical of authors who write about the carceral system because too often they write through the gaze of a detached observer. As an advocate for incarcerated people and stakeholder in how we are portrayed, I'm not one to give a pass to authors who gaslight readers about the facts.

Too many writers seek to capitalize off the suffering and misery of the incarcerated experience. They frequently only review statistics and data points before arriving at conclusions and rarely engage with the subjects of their research.

Part of Miller's fieldwork for his book included spending time interviewing incarcerated and formerly incarcerated people in jails, prisons, half-way houses, treatment programs, homeless shelters, and urban cities. He also interviewed local politicians, prison staff, reentry program staff, among others.

As someone who has been caged in Michigan prisons 32 years and intensely studied the carceral system experientially -- including reading books, scores of peer-reviewed journal articles, and research studies on the subject -- I can unequivocally state that Miller knows what he's writing about.

Anyone interested in learning about the real struggles and lived experiences of currently and formerly incarcerated people and their families should read this book. It will open your eyes about things you didn't know and change your perspectives about things you thought you already knew.

###

Book information online:

https://www.littlebrown.com/.../halfway-home/9780316451512/

(Efrén Paredes, Jr. is a blogger, thought leader, social justice changemaker, and Michigan juvenile lifer who has been incarcerated 32 years. You can find links to his writings, TV news/radio/podcast interviews, and activism by visiting http://fb.com/Free.Efren.)

Sunday, May 2, 2021

Seeds of Humanity Blossom in a Michigan Courtroom

by Efrén Paredes, Jr.

In 1993 a 17-year-old Flint youth named Victor Polk was charged, along with four other juveniles, for the armed robbery of a store and shooting death of a man.

He was subsequently convicted by a Genesee County jury for conspiracy to commit armed robbery and as the principal person responsible for the shooting. The four other juveniles were convicted of lesser offenses.

Polk was sentenced to life without parole (LWOP) for the shooting and life for the armed robbery. He is one of Michigan's 367 juvenile lifers, people originally sentenced to LWOP for crimes they were convicted of committing when they were minors.

I met Polk when he first entered the prison system at the Michigan Reformatory (MR) in 1994 when he was 18 years old. MR was a medium security prison that housed incarcerated people between the ages of 16 and 25. At the time we met I was 21 and had already been incarcerated five years.

MR is one of only three completely walled prisons in Michigan. It was built in 1877 and its walls resemble those ringing a medieval castle. For decades it was referred to as "gladiator school" because of its reputation for being one of the most dangerous prisons in the state.

I was housed at MR three different times between 1989 and 1995. I first arrived at age 16 and was the youngest person there at the time. It was the first prison I went to after leaving the Reception and Guidance Center, where people initially go from the county jail to be processed into the prison system shortly after they are sentenced.

While at MR I witnessed dozens of stabbings and fights. It was common to observe officers perched on the prison roof carrying loaded rifles. They would occasionally shoot warning shots in an effort to stop people from harming one another if a conflict erupted on the prison yard. Last year a person incarcerated at MR was shot through the shoulder by an officer from the rooftop during an incident involving an assault on the yard.

Polk and I interacted for the first time while participating in a study group together which taught us the value of self-knowledge, self-determination, cultural competence, spirituality, and social justice. It also introduced us to the role that politics and civic engagement play in our lives.

One of our most important takeaway from the group early on was that universes of opportunities are born whenever people open their hearts and minds and become receptive to new ideas.

Polk was a reserved person who displayed a quiet calmness. He was eager to learn, always attentive in our classes, and completed all assigned classwork. During the year we spent at MR together I had the opportunity to witness significant growth in him in just a short period of time.

Outside of class Polk and I would walk and talk on the yard about a variety of subjects. We talked about life in general, sports, music, where we were from, and things occurring inside the prison. He became one of many younger brothers and friends I would come to mentor over the years.

Over time I also came to discover that like me Polk, too, was sentenced to die in prison when he was a juvenile.

I left MR for the final time in 1995 and wouldn't see Polk again for another 26 years. Though we were housed at separate prisons during that time, I monitored the trajectory of his growth and progress by talking to mutual friends who shared space with him at different prisons over the years.

We also occasionally wrote letters to each other before the practice of allowing people incarcerated in Michigan prisons to correspond with one another ended in 2009.

Polk continued to ameliorate his life despite living in a gray wasteland teeming with social toxins which devalues life and progression and is designed to extinguish the human spirit.

He demonstrated that we are all a work in progress. "[P]eople do not exist in an eternal moment ... but are constantly changing their minds, projecting new actions into the world, learning and growing. We cannot reduce them to one moment only, to one crime or one good deed." (Linda Ross Meyer, "Forgiveness and Public Trust," 27 Fordham Urb. L.J. 1515, 1539 (2000)).

Research shows that sustained social isolation and living in an environment comprised of pathological and nihilistic elements can induce a diminution of meaning and self-worth.

Prisons are places where failure and degradation reign. I had seen the lives of incarcerated people ravaged far too many times, particularly the lives of young people, struggling to navigate the minefield of moral decay pervasive behind prison walls.

I was very cognizant that at any point despair or the misguided actions of others could send Polk in a downward spiral of self-destruction if he didn't cultivate resiliency factors and remain self-disciplined.

When we reconnected again in 2019, Polk and I walked together on a prison yard much different than the one we walked on decades earlier. The prison we are at now houses many older people, including the largest population of people serving life sentences in Michigan.

Polk and I caught up about events that had transpired in our lives during the past nearly three decades, including the delays we have both experienced waiting to be resentenced years after the 2012 U.S. Supreme Court ruling in Miller v. Alabama.

The Miller v. Alabama case banned mandatory LWOP sentences for juvenile offenders. At the time of the ruling 2,500 people were impacted.

Trial courts were ordered to review each juvenile lifer case to determine whether their case reflected transient immaturity or they are the rare juvenile lifer who is irreparably corrupt and rehabilitation is impossible.

Four years later the U.S. Supreme Court in Montgomery v. Louisiana made clear how extraordinarily uncommon LWOP sentences should become by emphasizing six separate times throughout the opinion that the sentence is only constitutional for the "rare" juvenile.

The Court also mentioned eight times in the Montgomery ruling that LWOP is barred for all juvenile defendants except for those who have committed homicide, whose crimes reflect "permanent incorrigibility" and "irreparable corruption," and for whom "rehabilitation is impossible."

It added, "[Juvenile lifers] must be given the opportunity to show their crime did not reflect irreparable corruption; and if it did not, their hope for some years of life outside prison walls must be restored."

In short, juvenile offenders who demonstrate the capacity for change and rehabilitation must receive new sentences that allow release consideration at some point in the future.

In speaking to Polk again in 2019, I observed firsthand he had continued evolving into a thoughtful, compassionate, and empathetic man. He was still making productive use of his time and using his choice architecture to effectuate transformational change.

Polk refused to allow himself to be defined by his crime or remain trapped in the past. He was now personifying the wisdom of Dr. Ashley E. Lucas, Professor, University of Michigan, who wrote in her illuminating book, "Prison Theatre and the Global Crisis of Incarceration" 145-146 (Methuen Drama: 2020):

"Human beings cannot grow or improve when they are tethered permanently and irrevocably to the past, when things that cannot be changed become the sum total of a person's existence and their potential to be anything else in the future."

I would often find Polk sitting alone on a picnic table or bench on the prison yard during afternoons watching cars drive. It was typical of him: still that reticent person I remembered many years earlier who found tranquility in his inner world.

During one of our conversations, Polk updated me about waiting to return to court to have his case evaluated for resentencing consideration based on the Miller v. Alabama ruling.

We had both experienced a series of delays because prosecutors in our counties were seeking LWOP sentences against us again rather than allowing us to receive new sentences that provide release consideration at some point in the future by the Parole Board.

The victim's wife, son, and daughter in Polk's case also understandably continued to oppose his release as they had since his arrest. The son and daughter were ages seven and five when the crime occurred.

After Polk's 1993 trial the victim's wife found purpose in her pain by becoming a nationally recognized champion for crime victim rights. She transformed her mourning into mission by initiating a statewide citizen petition for juvenile law reforms.

She also used her voice to promote enactment of truth in sentencing laws ensuring that offenders serve their entire minimum sentence before being considered for release.

The year following the murder of her husband she was present at the White House for the signing of the Violent Crime Control and Law Enforcement Act of 1994 (the 1994 Crime Bill). The historic bill -- comprised of 33 titles -- was designed to reduce violent crime and increase punishment against perpetrators of violent crimes.

Signed into law by President Bill Clinton, the Crime Bill was and remains the single largest "sweeping piece of federal criminal justice legislation in U.S. history that touched nearly every function or initiative of the criminal justice system." (Richard Rosenfeld, "The 1994 Crime Bill: Legacy and Lessons -- Overview and Reflections," 32 Fed. Sent. R. 147 (2020)).

October 8, 2020 Polk received a court hearing for a judge to consider whether his crime reflected transient immaturity, or he was the rare, irreparably corrupt juvenile offender who can never be rehabilitated. The hearing was presided over by Genesee County Trial Court Judge Elizabeth A. Kelly.

Judge Kelly heard testimony provided by expert witnesses on Polk's behalf and considered a wealth of evidence of his change and rehabilitation. She subsequently issued a ruling February 1, 2021 dismissing the prosecutor's motion seeking a LWOP sentence against him.

Her decision reflected the overwhelming majority of judges who have declared the extreme sentence of LWOP unconstitutional in 94% of juvenile lifer cases being evaluated for resentencing across the state.

Two months later Judge Kelly resentenced Polk on April 13, 2021 to two concurrent sentences of 28 to 60 years for both the homicide and conspiracy to commit armed robbery charges. He was supposed to be resentenced a month earlier but was delayed due to a scheduling conflict.

The judge was permitted to resentence Polk for the underlying felony of conspiracy to commit armed robbery because it was an invalid sentence pursuant to People v. Turner, 505 Mich 954; 936 NW2d 827 (2020).

A sentence is invalid if it is based upon a misconception of law. In the Miller context, a concurrent sentence for a lesser offense is invalid "if there is reason to believe that it was based on a legal misconception that the defendant was required to serve a mandatory sentence of life without parole on the greater offense." (People v. Turner)

At the conclusion of his resentencing hearing the prosecutor asked the judge if the victim's family could speak to Polk off the record. After receiving permission from the judge, the widow, son, and daughter of the victim in his case each spoke to Polk.

Rather than unleashing a salvo of contemptuous words against Polk, the family forgave him and wished him well with his life. They also conveyed that their family member who died was a good man and asked Polk to honor him by living the remainder of his life like their family member would have.

The son told Polk if not for the COVID-19 pandemic social distancing rules being in place he would have given him a hug.

The family demonstrated the embodiment of grace and compassion through their magnanimity and benevolence of their mercy. They were determined not to allow the resentencing hearing to become one more event added to the gallery of their grief.

It was a profoundly powerful and deeply moving moment, particularly in light of their previous seemingly implacable position that Polk remain behind bars until his life expired, and advocating for passage of legislation to ensure that that fate materialized.

The interface occurred between the victim's family and Polk as he stood facing them handcuffed inside of the jury box. Only a short wooden wall separated them from one another.

Polk told me, "The family refused to be imprisoned by anger and hatred anymore that day. They taught me a powerful lesson about forgiveness and humanity that I'll never forget. We cried together in the courtroom and I cried again this morning. It's been overwhelming."

In addition to the aforementioned details he shared with me, we discussed how decades-old trauma is reactivated during court hearings, and the heartbreak of observing the acute affliction that victim family members in our cases have endured due to the horror of violence.

"Sudden losses, unexpected traumas, and intrusive tragedies ... are difficult to handle and process. They can be ... destabilizing and devastating to the whole person, family, organization, or community." (Naji Abi-Hashem, "Grief, Bereavement, and Traumatic Stress," 32 Issues L. & Med. 245 (2017)).

Trauma and its baneful aftermath often shakes human life to its core. Crime survivors are left reeling in agony whenever they or someone they love suffers harm. Pernicious acts against them are indelibly seared into their souls. They "mark their memories forever and chang[e] their future identity in fundamental and irrevocable ways." (Jeffrey C. Alexander, "The Meanings of Social Life: A Cultural Sociology" 3 (2003)).

No person should ever have their life desecrated, violently disrupted, or cut short because of another person's virulent behavior. Every life is sacred and deserves to be respected and valued.

Polk went on to share his plans to live with the grandmother who raised him in the same childhood bedroom he slept in prior to his 1993 arrest. His grandmother has preserved the bedroom for him for nearly three decades.

She found it too painful to discard any of its contents all these years. They were tangible memories she clung to that helped her cope with his absence and allowed her to maintain a connection to him.

When asked about his post-release plans, Polk remarked that he wants to work full-time and further his education. He also wants to live a life of service to others by participating in activities to help improve his community in Flint.

According to Polk, "More than anything I want to help my grandmother who stood by and supported me all these years. I want to be there to help her do things like throw out her trash, help her clean the house, and buy her gifts on Mother's Day."

He added, "I want to do the small things many people take for granted. I'm not thinking about big things. I'll be grateful to just live a simple life and celebrate my freedom every day."

Since he has served 27 years in prison Polk will become eligible for parole consideration within the next year. There are no guarantees he will be released right away though.

Because he received a sentence of 28 to 60 years, he only becomes eligible for release consideration after he has served 28 years. However, the Parole Board still has the authority to deny him parole for up to 60 years.

In his 2017 Harvard Law Review article titled, "The President's Role in Advancing Criminal Justice Reform," President Barack Obama wrote:

"How we treat those who have made mistakes speaks to who we are as a society and is a statement about our values -- about our dedication to fairness, equality, and justice, and about how to protect our families and communities from harm, heal after loss and trauma, and lift back up those among us who have earned a chance at redemption."

When he is eventually paroled Polk will experience freedom for the first time in his adult life. He looks forward to that day and is committed to living a meaningful and productive life of purpose.

Even if his fresh start begins with cleaning out his childhood bedroom and replacing his belongings with items he will now need as an adult mid-way into his 40s.

(Efrén Paredes, Jr. is a blogger, thought leader, social justice changemaker, and Michigan juvenile lifer who has been incarcerated 32 years. You can find links to his writings, TV news/radio/podcast interviews, and activism by visiting http://fb.com/Free.Efren.)

Wednesday, February 17, 2021

Unpacking the Notion of Rehabilitation in the Case of Efrén Paredes, Jr. (Part 1)


by Necalli Ollin

(This is the first in a series of posts analyzing the prosecutor's arguments in recent court hearings regarding the case of Efrén Paredes, Jr.)

Friday, January 15, 2021, oral arguments were held in the Berrien County Trial Court in the case of Efrén Paredes, Jr.

Efrén is a 47-year-old Latino man arrested at age 15 in Berrien County, Michigan, for the 1989 homicide and robbery of a grocery store manager. He was later convicted by a jury and sentenced to life without parole. Minors serving the extreme sentence are commonly referred to as "juvenile lifers."

In 2012 the U.S. Supreme Court issued a landmark ruling in the case of Miller v. Alabama banning mandatory life-without-parole sentences for children. The Court also ordered the resentencing of 2,500 people impacted by the ruling nationwide. In Michigan Picture:  Keith Negley for The Washington Post            367 people had to be resentenced.

Michigan trial courts now have the option of imposing a term-of-year sentence ranging between a 25-40 year minimum or a life-without-parole sentence on juvenile offenders charged with first-degree murder. Trial courts previously could only impose a life-without-parole sentence for the charge. The U.S. Supreme Court gave trial courts the option to choose which sentence to impose.

According to the U.S. Supreme Court, however, only juvenile offenders who are "irreparably corrupt" and forever incapable of change and rehabilitation can receive a life-without-parole sentence. The high court also added that sentencing juveniles to life without parole must become a "rare" and "uncommon" practice only appropriate in "exceptional circumstances."

Of the 200+ juvenile lifers who have been resentenced statewide 93% of them have received a term-of-year sentence. The vast majority have received sentences of time served or an average 30-year minimum sentence. None of the juvenile lifers who have been released have reoffended and they have a zero percent recidivism rate.

Nearly nine years after the U.S. Court decision, however, 150 Michigan juvenile lifers still await a review of their case for consideration of a new sentence, including Efrén.

The primary reason for the sentencing delays in these cases is that prosecutors across the state insisted on ignoring the 2012 U.S. Supreme Court ruling and pursued life-without-parole sentences against these individuals again. Doing so required counties to conduct costly mitigation hearings for each defendant.

There has been no concern for the costs of each hearing by prosecutors, however, because taxpayers are being made to pay for attorneys, expert witnesses, and related court costs in nearly each case.

THE REHABILITATION FACTOR

It is important to examine the issue of rehabilitation in Efrén's case closely because it is the singular most important factor a trial court judge must consider when determining whether a juvenile offender is a candidate to receive a life-without-parole or term-of-year sentence.

During oral arguments held in Efrén's case on January 15, 2021, retired Berrien County prosecutor Michael Sepic presented a convoluted claim about rehabilitation. Early on he stated that there was "no way to determine" if Efrén had been rehabilitated from what caused him to commit the crime he was convicted of because he asserts his constitutional right to maintain his innocence.

Sepic later stated that Efrén's accomplishments during incarceration "bode well for him." Inherent in this statement is an acknowledgement that Efrén has the capacity to learn, grow, and change.

However, blinded by his rage to punish, Sepic contradicted himself only minutes later by making the patently false statement to the judge that there is "absolutely no [evidence of] rehabilitation" during Efrén's incarceration.

In a recent published Michigan Court of Appeals (MCOA) ruling decided January 21, 2021, the Court stated that the trial court abused its discretion when upholding the life-without-parole sentence of a juvenile lifer after conducting his mitigation hearing.

According to the MCOA, the trial court "fail[ed] to consider whether the defendant 'was and would remain wholly incapable of rehabilitation for THE REMAINDER OF HIS LIFE[.]'" (emphasis added) (quoting People v. Garay, 320 Mich. App. 29, 49 (2017)). (People v. Bennett, 2021 Mich. App. LEXIS 472, *9).

The MCOA added, "'Irreparable corruption,' [i.e., forever having no capacity for change] is the ONLY ground [the U.S. Supreme Court] specifically identified for imposing a life-without-parole sentence [for a juvenile offender]. See Miller [v. Alabama], 567 U.S. at 479." (emphasis added) (People v. Bennett, at *10)

Sepic's claims about Efrén's capacity for change and rehabilitation collapse in light of the recent MCOA ruling which clearly defined rehabilitation when applied to juvenile lifer cases.

The MCOA stated, "'rehabilitation' involves the successful completion of vocational, education, or counseling programs designed to enable a prisoner to lead a useful life, free of crime, when released." (People v. Bennett, at *19).

When applied to Efrén he has fulfilled every facet of this definition. He has not only successfully completed "vocational, education, OR counseling programs," he has completed them all a multiplicity of times.

According to Bureau of Justice Statistics 95% of offenders plead guilty to crimes in exchange for reduced charges and more lenient sentences. All plea agreements are negotiated through prosecutors' offices, including violent crimes such as homicide, sex offenses, etc.

Sepic made the brazenly dishonest argument that Efrén hasn't demonstrated evidence of change and rehabilitation, but he never made that same argument in the thousands of other cases he rushed through the criminal justice system in the interest of saving time and money during his checkered time in office.

The vast majority of defendants Sepic has negotiated plea agreements with over the years never produced evidence of rehabilitation before he negotiated reduced charges with them, but he facilitated their ability to be sentenced anyway. Most defendants were adults at the time they committed their crimes.

Plea agreements are negotiated between the time of a person's arrest and when they are sentenced when most of them are in jail. In jail there are no rehabilitative programs available and generally people are sentenced within months of their arrest.

Sepic also argued that Efrén exercising his constitutional right to maintain his innocence for nearly 32 years is a reason he has not been rehabilitated. During the court hearing he attacked Efrén for invoking his constitutional right to not admit guilt by characterizing him using degrading language.

According to the Michigan Supreme Court, "[A] court cannot base its sentence EVEN IN PART on defendant's refusal to admit guilt." (emphasis added) (People v. Hatchett, 477 Mich. 1061 (2009); People v. Jackson, 474 Mich. 996 (2006).

The Michigan Supreme Court has also stated, "It is a violation of due process to punish a person for asserting a protected statutory or constitutional right." (People v. Ryan, 451 Mich. 30, 35 (1996)).

During Efrén's January 15, 2021, court hearing Sepic asked the judge to dismiss testimony Efrén previously provided in court about encountering difficulty growing up Brown in America, and having been called epithets during his childhood because of his Mexican-American heritage.

Sepic claimed that the experiences never occurred without presenting a single witness or shred of evidence to refute Efrén's testimony. In a brief he submitted to the court on December 22, 2021, Sepic stated even if Efrén did experience "the racial stuff that was going on" it didn't "interfere with his brain development and maturity."

Rather than condemn the racist acts, Sepic chose to condemn Efrén instead. Sepic's mindset and racially offensive statement is part of the reason that he and fellow prosecutors have created a culture of disparate and unfair treatment resulting in 70% of Michigan juveniles sentenced to life without parole being children of color.

INTELLECTUAL DISHONESTY & UNFOUNDED ARGUMENTS

During the January 15, 2021 hearing Sepic wildly ignored advancements in brain science, adolescent development research, reason, and common sense. He claimed that Efrén had an 18-year-old brain when he was 15, and that he also has the same "charisma, intelligence, and personality" today he had when he was 15. Both claims were untethered to reality and had no basis in fact.

He also cited examples of normal human behavior that have occurred during Efrén's incarceration (e.g., getting married, becoming a father, using the Internet, etc.) as reasons he is incapable of rehabilitation.

Another illogical argument Sepic made as evidence that Efrén has not been rehabilitated is that he invited citizens to exercise their First Amendment right to send letters to his judge -- an elected official -- expressing support that Efrén receive a term-of-year sentence rather than life-without-parole.

Sepic made this argument despite his own personal efforts to coordinate a campaign to recruit citizens in 2008 and 2009 to write letters to the Parole Board and Governor opposing Efrén's release.

Dozens of emails sent from and to Sepic during that time were obtained via the Freedom of Information Act. In one email dated Wednesday, September 10, 2008, 2:28 PM, Sepic sent to several people he wrote:

"My intention in providing [you information about the Paredes case] ... is to have a base of information. Please advise anyone that writes a letter ... to [use] their own words so we don't get letters looking alike. ... I'd rather not have it look like we're orchestrating this."

There is also evidence that Sepic proofread and provided feedback to several letters written by citizens who he asked to write to the Parole Board. One person Sepic asked to write a letter emailed him a draft copy of her letter on Wednesday, October 29, 2008, 3:31 PM, and asked him, "Let me know if you think I should change anything [i]n it?"

Sepic responded to her question via email minutes after receiving it at 3:58 PM stating, "That is exactly what I had in mind and to the point. ... Thank you very much for doing this, I truly appreciate it." In this instance he approved a letter knowing it contained false and misleading information. Sepic's actions were tantamount to colluding to provide false information to public officials.

(The names of citizens Sepic contacted or contacted him via email regarding Efrén's case are being withheld to protect their privacy.)

These baseless and unhinged arguments were merely distractions offered up by Sepic as a disinformation campaign to avoid addressing the heart of what the U.S. Supreme Court stated in Miller v. Alabama -- that only juvenile offenders who are "irreparably corrupt" and forever incapable of change and rehabilitation can receive life-without-parole sentences.

EVIDENCE OF EFREN'S REHABILITATION ROOTED IN REALITY

During his court hearing Efrén's attorney Stuart Friedman stated, "actions speak louder than words." He went on to say that Efrén is the things he has repeatedly done for the past three decades, which includes a raft of positive accomplishments to better himself.

Today Efrén is a husband, father, and humanitarian. He is also a sought after speaker who has spoken on several university campuses, radio stations, podcasts, TV news programs, and participated on panels via phone at events across the nation speaking about criminal justice reform, improving race relations, and other issues.

An examination of Efrén's institutional history, personal life, and benevolence track his maturation as he has evolved into a compassionate, responsible, thoughtful human being. He has developed a profound appreciation for the sanctity of life and inherent dignity in others. Several witnesses testified at Efrén's October 6-7, 2020 mitigation hearing about this and a number of support letters were submitted to the court as further evidence.

Efrén has also helped enrich the lives of others inside and outside of prison. He has used the knowledge and skills he has acquired to assist both incarcerated peers and citizens in society use critical thinking, emotional intelligence, and conflict resolution to empower themselves to become better human beings and sound consequential thinkers.

According to Efrén, "I have learned that every person has the innate capacity to learn, grow, and change. 'Life is ever unfolding, continually renewing and redesigning the intricate pieces of our character.' (Iyanla Vanzant). No one is defined by their worst mistake or best choice in life. We are a culmination of our decisions and lived experiences. Everyone is a work in progress, no one remains frozen in time."

A prison Warden and 30-year employee of the Michigan Department of Corrections (MDOC) wrote a letter of commendation for placement in Efrén's institutional file stating in part, "[Y]ou have not only served as the chairman of the Warden's Forum for four terms ... you have also led the forum in a direction of positive change and helped to maximize communication between the administration and other prisoners."

He added, "[T]he attitude that you display, and the manner in which you carry yourself, is an excellent example to other prisoners as you demonstrate that it is possible to be positive and productive even within a correctional setting."

A retired 20-year corrections officer with the MDOC and former U.S. Marine also wrote a support letter on Efrén's behalf stating, "As a corrections professional for several years, and having interacted with numerous prisoners during my employment with the MDOC, it is my opinion that Efrén Paredes, Jr. poses no threat to society and deserves to be released. ... I believe he is an excellent candidate for release from prison."

These individuals are career professionals with decades of corrections experience who have had the opportunity to spend time closely monitoring Efrén's behavior and associations. They are far more credible than Sepic at evaluating Efrén's character and risk for being safely returned to society.

Additional testimonials about Efrén's character and conduct by current and former MDOC staff and volunteers who have closely monitored and interacted with Efrén during the past three decades of his incarceration will appear in an upcoming installation in this series.

During his incarceration Efrén has participated in numerous rehabilitative programs, participated in a campaign to help a middle-school attain its charter authorization in the Los Angeles Unified School District, become a Literary Braille Transcriber certified by the U.S. Library of Congress, and accomplished myriad other things.

And he has managed to do them all living under the enormous stress of struggling to survive daily and navigating a minefield of moral decay behind bars. Prison is a dysfunctional environment teeming with social toxins which devalue life, progression, and are designed to extinguish the human spirit.

According to a recent brief filed in court on Efrén's behalf, "During the past eleven years Efrén has benefited from receiving over 130 counseling sessions interfacing with psychologists and social workers through the Outpatient Mental Health Program to help him manage depression. Half of all citizens will experience a mental health issue in their lives, but only 13% will seek professional help. Efrén's willingness to seek help reflects his ability to recognize personal struggles and address them in a responsible way."

While participating in therapy Efrén has received certificates for completing several classes including Grief and Loss, Healthy Boundaries, Thinking Errors, Meditation, Stress Management, Character Development, and Anger Management. These classes have helped him cultivate greater empathy, insight development, and self-awareness.

In an August 4, 1989 psychological evaluation report prepared by Dr. Stephen C. Cook after evaluating Efrén, the psychiatrist stated, "[T]his offense is not part of a repetitive pattern of offenses which would lead to the determination that [Efrén] may be beyond rehabilitation under existing juvenile programs and statutory procedures[.]" In other words, the psychiatrist determined Efrén was not incapable of change or rehabilitation.

If Efrén were truly a violent, irredeemable person he would have exhibited a pattern of violent life-course persistent behavior while in prison. Not only does this pattern not exist in Efrén's incarceration history, his life behind bars has been the complete inversion of this. Though stabbings, robberies, and other assaultive and predatory behavior (including murder) are a recurring part of ordinary prison life, they have been glaringly absent in Efrén's behavior.

Contrary to popular belief prisons do not stop or prevent violence. They are an apparatus that fosters a culture of violence and serve as incubators to proliferate it. The only thing that prevents prisoners from exhibiting violent behavior is their conscious choice to repeatedly reject the impulse of violence and criminal thinking in all its manifestations.

Though some incarcerated people will arrive at this thinking aided by their participation in available prison rehabilitative programming, incarcerated people serving life without parole sentences can only rely on themselves when pursuing the enterprise of learning because of the paucity of programming opportunities available to them.

It would be impossible for Efrén to have read countless educational books, completed numerous rehabilitative classes, and done many other positive things with his life if he did not possess the capacity to learn, grow, and change. The fact that he has participated in every rehabilitative program available to him at every prison he has been housed alone is evidence of rehabilitation.

Efrén has perpetually sought to evolve because he made the conscious choice to do so on his own, not because he was forced to. He was originally sentenced to die in prison and had no incentive to become a better person.

During his incarceration Efrén has openly condemned crime and violence, and dedicated considerable time to fostering nonviolence through his numerous writings, interviews, and speeches at various events. He has also done so through facilitating classes in prison about conflict resolution, impulse control, and insight development.

In a letter addressed to Sepic dated July 10, 2020, Efrén wrote:

"If released one day, I will offer decades of skills and experience I have developed helping transform lives inside and outside of prison to your office, law enforcement, and to the citizens of the county to help prevent crime and promote improved race relations."

He also stated:

"My heart breaks for each person who has been a victim or survivor of crime and I pray for their healing. Not a day goes by that I don't think about the profound anguish, sorrow, and incalculable loss the Tetzlaff family has endured. No one deserves to have their life cut short or their world upended because of the pernicious actions of another human being."

At his October 7, 2020 court hearing Efrén spoke directly to the victim's family in the courtroom from the witness stand. He emotionally expressed being deeply sorry for their tragic loss and was in the process of sharing additional thoughts reflecting compassion and empathy before being interrupted by Sepic objecting to this moment of humanity in the courtroom.

Further evidence of Efrén's growth and maturity also appeared in his July 10, 2020 letter to Sepic when he wrote:

"As a 47-year-old husband and parent, someone who has had family members and friends victimized by violence, met and spoken to non-family crime victims and survivors, and a person who has engaged in decades of introspective work, I empathize with the visceral pain and suffering of people feel who have been impacted by violence."

* * *

"During my incarceration I have participated in numerous programs afforded to me and come to learn about the devastating impact that crime has on victims, first responders, and the community at large. I have also created programs that have helped people become problem solvers, sound consequential thinkers, and agents of healing."

Any parent or person who has worked with children knows that kids change. It is a natural part of life. We were all teenagers ourselves once and none of us are the same person we were as adolescents. Even as adults we perpetually change.

According to behavioral experts no evidence exists that personality ever ceases to change during a person's lifetime. (Avshalom Caspi & Brent W. Roberts, "Personality Development Across the Life Course," 12 Psychol. Inquiry 49, 51 (2001)).

Evidence also exists that personality traits change gradually and systematically throughout the life span, sometimes more after age 30 than before. (Sanjay Srivastava et al., "Development of Personality in Early and Middle Adulthood," 84 J. Personality & Soc. Psychol. 1041, 1051 (2003)).

The evidence that Efrén is not irreparably corrupt, permanently incorrigible, or forever incapable of change or rehabilitation is abundantly clear. An objective data-driven, evidence-based objective review of Efrén's life during the past 32 years makes it clear he is not deserving of a life without-parole-sentence.

According to the U.S. Supreme Court, juvenile offenders like Efrén who have decades of documented and established evidence of capacity for change and rehabilitation must receive a term-of-year sentence. A life-without-parole sentence in that instance would be unconstitutional and subject to being reversed and vacated by an appellate court.

A ruling by the Berrien County Trial Court about whether Efrén will receive a term-of-year or life-without-parole sentence is expected in March.

The next installment of this series will feature a collection of citations from U.S. Supreme Court, Michigan Supreme Court, and other relevant court opinions stating which juvenile offenders are not candidates to receive life-without-parole sentences in their own words.

Source:  http://facebook.com/Free.Efren