Born in Chains: The American Way of Birth in Prison

Thanks to its incarceration addiction, the US has the world’s largest female prison population – but no plan for pregnancies

When DeShawn Balka was five-and-a-half months pregnant, she was sent to the Clayton County Jail in Atlanta, Georgia for a misdemeanor charge of marijuana possession. As her pregnancy was high-risk, she was housed in the jail’s infirmary. On the night of 18 April 2012 she started experiencing nausea and stomach pain and called for medical assistance. According to her attorney, Mike Mills, and her two cell mates, her cries for help were not only ignored but, she was warned to shut up or else the entire ward would be put on lockdown.

DeShawn Balka, who is suing Clayton County, near Atlanta, Georgia, over the death of her prematurely-born baby in prison. (Screengrab from WSBTV)

Suddenly, DeShawn was screaming and her two cellmates began banging on their cell door. When the guard in charge finally came to her aid, she was found sitting on the toilet in tears. An investigation report issued by the Clayton County Sheriff’s office describes in a rather chilling manner, their version of what happened next:

“When Sergeant Mayo got to cell 3508 she saw Inmate Balka sitting on the toilet crying. Sergeant Mayo told Inmate Balka to stand up so she could help the baby. Inmate Balka refused saying it hurt too much to stand. Sergeant Mayo finally convinced Inmate Balka to stand and when she did, Sergeant Mayo observed a baby face down in the toilet. Sergeant Mayo then grabbed the baby and held its face out of the water until medical arrived. LPN Eugene Andry responded and removed the baby from the toilet and started CPR.”

It was too late, of course: the baby, Inyx O’Neil Balka, was never to get a shot at living, and his mother is now suing the county for neglect. The county in turn (via their investigation report) deny any wrongdoing. Whatever the outcome of the lawsuit, the case highlights the inherent dangers of placing pregnant women in prison – and the complete lack of any program or protocol to cater to their particular needs, never mind their unborn babies’ welfare, once they get there.

Thanks to the war on drugs, and a general 30-year-long incarceration binge, the number of women in prison has increased by over 400%, to the point where America can now make the not-so-proud boast of having the largest female prison population in the world. The vast majority of these women are not only non-violent first-time offenders, they are frequently the victims of violence themselves, and their crimes are often crimes of addiction, either stealing to buy the substance of that addiction, or simply being caught in possession of it. Needless to mention, women of color are far more likely to end up in prison than their white counterparts.

Yet, however deserving of jail time convicted women may or may not be, their unborn children have done nothing to earn a prison sentence. And they, at the very least, deserve the chance to good-quality pre- and post-natal care, as well as a dignified birth.

For most babies born in prison, these inalienable rights are little more than a pipe dream. In 2010, the National Women’s Law Center and the Rebecca Project issued a report called Mothers behind Bars, a state-by-state report card on the treatment of incarcerated pregnant women and their babies. The report graded each state on three areas: pre-natal care, shackling policies and alternatives to incarceration. Even by the low standard of care for inmates one comes to expect from the US prison system, the conclusions are shocking.

Nearly half the states received an overall failing grade, and over two thirds received a failing grade for their lack of pre-natal care. Forty-nine out of 50 states fail to even report all incarcerated women’s pregnancies and their outcomes; 43 states do not require medical examinations as a component of pre-natal care; and 36 states still engage in the barbaric practice of shackling pregnant women, often with ankle, wrist and belly chains, before, after and sometimes even during labor.

The state of Georgia received an overall D Grade and an F for pre-natal care. This is ironic considering that, around the same time the report was released, the Georgia state legislature were trying to pass one of those now infamous “personhood” bills that would have awarded the fetus more rights than the mother carrying it, and would have mandated that any suspect miscarriages be investigated as potential “pre-natal murder”. That bizarre bill, thankfully, did not pass. Unfortunately, the state’s apparent reverence for the unborn child did not extend to those unwittingly enmeshed in its criminal justice system.

Perhaps the most important revelation of the report, though, was what there is no national standard of care, or even a national set of guidelines to help prison officials deal with a problem that clearly falls outside their normal competence. Prisons were not designed to be pre-natal care clinics, labor wards or nurseries. Apparently, this fairly obvious fact has never occurred to any of the government legislators who decided that throwing more women in prison for longer periods was an appropriate way of addressing our social ills; nor do they appear concerned about the innocent children who have suffered as a result.

DeShawn Balka is not the only woman in the state of Georgia currently mourning the loss of her child after an unnecessary prison term. Taylor Hogan also lost her baby in a Georgia jail when she was just 24-weeks pregnant. Hogan, who has also filed a lawsuit, claims to have been shackled before and after her baby died. Both of these women were in prison on trivial misdemeanor charges. The time and money the state wasted on their incarceration could have done far more good had they been invested in the disadvantaged communities that provide the US with the bulk of their prison population.

The best way to avoid similar tragedies, of course, is to stop needlessly sending women, especially pregnant women, to prison. But if the state is going to do so, one would hope it would take a tad more seriously its moral obligation to ensure that innocent babies are not neglected or harmed.

© 2012 The Guardian/UK

A Move To Free The Cuban 5

This page is also available in: Spanish

Note:  Affidavit will be posted at www.thecuban5.org (The Case/Legal Documents) as soon as the final version is filed

By Danny Glover and Saul Landau

People stop in Victorville California 85 miles northeast of Los Angeles because they have to see someone at one of its several prisons (federal, state, county and city) or have prison-related business, or because they’re hot and tired coming back from Las Vegas to Los Angeles and the thought of a swimming pool and an air conditioned room seem irresistible.

We book rooms so we can get to the prison early and spend more time with Gerardo Hernandez. We know the way from Highway 15 west into rolling desert hills from whence one sees a massive gray concrete structure – the federal penitentiary complex.

We fill out the forms, pass through the X-ray machine, get patted down by a guard, get our wrists stamped with indelible ink that shows up under a scanner in the next room, and by 8:45 we are seated in the Visiting room, with black and Latino wives and kids who are seeing husbands and daddies.

Gerardo emerges; we hug and start talking. He told us that Martin Garbus, his lawyer, had filed a new writ (available at www.thecuban5.org) declaring Gerardo’s trial violated basic law and the Constitution, and should be voided – freeing him and his comrades from their long sentences.

Documents show, according to the brief, that the U.S. government paid a host of Miami-based journalists to file negative stories on Gerardo and his fellow defendants (The Cuban 5). These U.S. government paid-for stories appeared in newspapers, magazines, radio and TV and influenced public opinion in the community, including jury members and their families, the writ argues, and therefore calls into deep question whether a fair trial in Miami was possible for the five accused men.

The brief states that the U.S. “government’s successful secret subversion of the Miami print, radio, and television media to pursue a conviction was unprecedented,” and “violated the integrity of the trial and the Due Process Clause of the Constitution.”

Garbus further argues that “The Government, through millions of dollars of illegal payments and at least a thousand articles published over a six-year period, interfered with the trial and persuaded the jury to convict. The Government’s Response to this motion is factually barren and legally incorrect. The conviction must now be vacated.”

In the lengthy brief, Garbus shows how journalists wrote and spoke for news outlets for the sole purpose of painting a distorted picture of what the defendants were doing, which was trying to prevent Miami-based terrorism in Cuba, and instead, as Garbus’ brief shows, to portray them as military spies trying to prepare south Florida for a military invasion from Cuba.

The Miami Herald fired the journalists on the grounds they had broken a basic code – taking money from the government to write stories. The brief states that “Thomas Fiedler, the Executive Editor and Vice President of The Miami Herald, when talking about the monies paid to his staff members and members of other media entities by the Government, said it was wrongful because it was “to carry out the mission of the U.S. Government, a propaganda mission. It was wrong even if it had not been secret.” It was secret because the government officials knew it wrong and illegal.

Gerardo and four companions have served almost 14 years in federal lock up for trying to stop right wing Miami thugs from bombing Havana. In 1997, a series of bombs hit hotels, restaurants, bars and clubs. One tourist died and many Cuban workers in these establishments were wounded. The bombings were orchestrated by Luis Posada Carriles, resident of Miami today, and financed by right wing exile money.

As we sat in the visiting room surrounded by mostly people of color, with four guards watching us and the other visitors, we nibbled on salted snacks from the vending machine (“prison gourmet”).

Gerardo told us about his time in “the hole,” for no bad behavior on his part, but for his “protection”! He spoke of deprivation of the routine monotony. “Look around,” he said, “you don’t see a lot of middle class people here. There were none. Most of the prisoners were black or Latino, plus one who Gerardo thought was a descendent of poor Okies. All share a lack of money to hire good lawyers.

“I was transferred here from Lompoc in 2004 because Lompoc was not going to be a maximum security prison any more,” Gerardo told us. As if this cultured, disciplined man needed maximum security. We wondered how we would endure the punishment of imprisonment in a supposedly correctional and rehabilitative institution, where no correction or rehabilitation takes place.

We drove from the prison to the Ontario airport and asked ourselves: What, we asked ourselves, was a well-educated Cuban man doing in such a place? The U.S. government knew the Cuban agents had infiltrated Cuban exile groups that intended to cause damage to Cuba’s tourist economy. The five were fighting terrorism and sharing information with the FBI. They should never have been charged and now, almost 14 years of prison later, they should at last be freed.

President Obama could and should pardon them and send them home. Cuba has indicated it would respond by freeing Alan Gross, who worked for a company contracted to USAID with a design to destabilize the Cuban government and was convicted in Cuba. It’s time for President Obama to put this issue on his agenda.

Danny Glover is an activist and actor. Saul Landau’s WILL THE REAL TERRORIST PLASE STAND UP plays in Portland Sept. 12 and Toronto Sept. 21.

The Secret Scheme To Sabotage Abu-Jamal’s Appeal Rights

from This Can’t Be Happening by: Linn Washington Jr.

Mumia Abu-Jamal, the internationally recognized American political prisoner, thwarted a Philadelphia judge’s secretive court order that could have eliminated his future appeal rights when he filed a last- minute motion on August 23rd challenging that order sentencing him to life-without-parole.

Most supporters and detractors of Abu-Jamal had been expecting the formal conversion of his controversial death sentence to life-without-parole in the wake of a federal appeals court’s second and final rejection of requests from Philadelphia prosecutors to keep Abu-Jamal on death row back in April 2011.

What was unexpected by Abu-Jamal supporters were the procedures surrounding the secretive court order, which appears to have violated a number of Pennsylvania Rules of Criminal Procedure.

Abu-Jamal’s Pro Se Motion for Post Sentence Relief and Reconsideration of Sentence referenced Rule 720 of Pennsylvania’s Criminal Procedure which states in part that defendants shall “have the right” to make post-sentence motion but that motion must be filed “no later than 10 days after imposition of sentence.”

That secretly issued resentencing order occurred on August 13, 2012, exactly ten days before Abu-Jamal filed his motion.

If that ten-day filing period had expired, undiscovered due to secrecy-shrouded issuance of the resentencing order about which no public notice or notice was provided to Abu-Jamal and his legal team, his legal ability to challenge his continued confinement would have been damaged, including his probable loss of future appeal rights.

Mumia, off death row but fighting to escape life in prison, with attorney Rachel Wolkenstein and his wife Wadiya Jamal

Mumia, off death row but fighting to escape life in prison, with attorney Rachel Wolkenstein and his wife Wadiya Jamal

Court rules and common decency require notice of court actions — both pending and actually taken.

“This is the same backdoor stuff that’s always done to him,” a Mumia attorney, Rachel Wolkenstein, said during an interview outside of Philadelphia’s Criminal Justice Center after delivering Abu-Jamal’s motion.

Philadelphia Preident Judge Judy "Take the Law Into Your Hands" Dembe with her husband

Philadelphia Preident Judge Judy “Take the Law Into Your Hands” Dembe with her husband

Wolkenstein, who has worked on Abu-Jamal’s case for over two decades, uncovered that secretly issued judicial order.

She became aware of it during a routine inspection of Philadelphia court records checking to see when a resentencing would occur.

Wolkenstein immediately informed Abu-Jamal and his legal team, all of whom were unaware of the order.

Wolkenstein then made two trips to the Pennsylvania prison holding Abu-Jamal, the last trip to bring Abu-Jamal’s Motion to the Philadelphia court house a few hours before that ten-day filing deadline expired.

Rule 114(b)(1) of Pennsylvania’s Rules of Criminal Procedure states that a “copy of any order or court notice promptly shall be served on each party’s attorney…” –- procedures apparently not followed in this resentencing of Abu-Jamal.

Another provision of those Procedures, Rule 704, states the sentencing judge must advise a defendant “of the time within which defendant must exercise” their right to appeal and other post-sentencing matters.

“A number of death sentences have been reversed in Pennsylvania and the person’s given life sentences. As far as I know each of those persons received more formal proceeding than what happened here,” Wolkenstein said.

Rule 114(A)(2) of Pennsylvania’s Criminal Procedure states that “all orders and court notices promptly shall be placed in the criminal case file.”

Yet Wolkenstein said when she asked Philadelphia court clerks for the resentencing file days after the order’s issuance, court clerks told her there was no file containing a record of that resentencing.

Philadelphia Court Clerk officials, when contacted for comment, requested that questions be made in a written format for review by their lawyers. Those officials did not reply to the submitted questions by the time of this article’s posting.

Another factor further obscuring that resentencing order, Wolkenstein said, is that the court docket captioned under the birth name Abu-Jamal — Wesley Cook — hasn’t been used since the late 1960s.

The majority of court files and court rulings (state and federal) list the name Abu-Jamal not Cook, thus persons examining court files generally look for Abu-Jamal and not the name Cook.

The perverse procedures swirling around that resentencing order were not unusual, given the legal improprieties and other irregularities that have stained Abu-Jamal’s case since his December 1981 arrest for killing a Philadelphia policeman.

Philadelphia’s President Judge, Pamela P. Dembe, resentenced Abu-Jamal to life-without-parole on August 13th, according to sketchy Philadelphia court docket documents.

Those documents state that Dembe was acting in accordance with a December 2001 order from a federal district court judge who voided Abu-Jamal’s death sentence after ruling that the judge at Abu-Jamal’s 1982 murder trial had incorrectly instructed the jury on how to conduct its death penalty deliberation.

“Nothing in that federal ruling says it’s OK for no notice and no record in the resentencing,” Wolkenstein said, questioning the legality of the resentencing.

Abu-Jamal, despite having his death sentence vacated in 2001, remained in death-row isolation until December 2011 because the federal judge that eliminated his death sentence granted a punitive request from Philadelphia prosecutors to keep Abu-Jamal on death row while they appealed that judge’s ruling — a process that took ten years.

Abu-Jamal’s Motion cites the fact that he wrongfully spent nearly thirty-years in death row isolation on a sentence federal courts ruled was illegal. His supporters, like Wolkenstein, cite that illegal death row incarceration as fact enough to release this man whose published six critically acclaimed books and over a thousand commentaries while on death row.

Philadelphia prosecutors pursued two unsuccessful appeals in federal appeals court seeking unsuccessfully to reinstate the death sentence that was vacated in 2001. There were also two efforts going up to the U.S. Supreme Court seeking to uphold an execution.

In early December 2011 Philadelphia prosecutors announced that they were no longer appealing those federal appellate court rulings, thus ending their effort to execute Abu-Jamal.

But Pennsylvania prison authorities, instead of removing Abu-Jamal totally from solitary confinement in compliance with those long-delayed federal court rulings at that point, initially simply shifted him from death row to the more draconian isolation of administrative custody.

Prison officials advanced ever-changing rationales for keeping Abu-Jamal in administrative custody, including the Kafkaesque claim that they needed legal clarification that courts had formally replaced Abu-Jamal’s death sentence with life in prison.

Prison officials, in January 2012, facing international protests, finally relented and released Abu-Jamal from isolation into general population.

Judge Dembe’s secretive resentencing is in concert with earlier improprieties that have stalked all facets of Abu-Jamal’s arrest, trial, appeals and imprisonment.

Philadelphia police, for example, right from the moment of Abu-Jamal’s arrest at the scene of the shootings, failed to perform the standard test to prove Abu-Jamal had even fired the pistol that police said he used to kill the officer.

One of the gravest yet least examined improprieties occurred on the eve of a pivotal 1995 appeal hearing when then then Pennsylvania Governor Tom Ridge issued a death warrant on Abu-Jamal.

That warrant was issued because lawyers in Ridge’s office had secretly and unlawfully intercepted correspondence between Abu-Jamal and his lawyers, and discovered the date they planned for the filing of their client’s appeal.

That Ridge-issued death warrant severely disrupted Abu-Jamal’s appeal proceeding, forcing Abu-Jamal’s defense team to fight the warrant while simultaneously preparing for the appeal hearing.

The execution date was also used by the appeal hearing judge — Albert Sabo, who had also been the judge at Abu-Jamal’s original murder trial — as a justification for unduly speeding that hearing. That gratuitous rush Sabo ordered further constrained defense efforts by limiting their ability to locate and bring in witnesses.

Additionally, issuance of that death warrant was improper because Abu-Jamal had a constitutional right to that 1995 appeal of his death sentence before an execution could take place.

Federal and state courts have persistently ignored that glaringly improper intervention by Ridge, which effectively robbed Abu-Jamal’s of a key step in his appeal rights — the right to have a fact-finding review of his flawed 1982 trial and to introduce new evidence of innocence.

Significantly, Judge Dembe is the same jurist who years ago rejected compelling evidence that the judge in Abu-Jamal’s 1982 trial had made a racist, prosecution-favoring admission on the eve of the proceeding.

A court stenographer had come foreward and announced that she had, back in 1982 during the jury selection phase of the trial, overheard that trial judge, the infamous Albert Sabo, declare to his court aide that he was going to help prosecutors “fry the nigger,” a clear reference to Abu-Jamal.

Racist and/or pro-prosecution bias by a judge is forbidden by Supreme Court rulings and by Pennsylvania’s Code of Judicial Conduct, not to mention basic principles of Common Law.

Yet, Dembe refused to take testimony from the stenographer to determine the veracity of allegations from that woman, who hails from a family of police officers.

Dembe, in a ruling exhibiting ridiculous reasoning, claimed Sabo’s racist, pro-prosecution rant was immaterial to Abu-Jamal’s conviction because, she opined, a jury not Sabo convicted Abu-Jamal.

Dembe’s fundamentally flawed assertion pretended that Sabo, as trial judge, did not influence the course of the trial in a series of sabotaging actions like stripping Abu-Jamal of his right to represent himself at trial just days before testimony began (and sending his defense into a tail-spin), withholding favorable Abu-Jamal evidence from jurors, and even selecting a juror for duty who had honestly admitted to being solidly biased against Abu-Jamal.

The injustice in Abu-Jamal’s long-running case has elicited condemnation from numerous entities as diverse as Amnesty International, the NAACP and the City Council of Munich, Germany.

The injustice evident in Abu-Jamal’s case is consistent with the injustice exhibited daily by some Philadelphia police, prosecutors and judges.

The same day Abu-Jamal filed his resentence-challenging motion, a Philadelphia judge convicted Philadelphia broadcaster Jeff Hart of disorderly conduct for a minor incident arising from Hart’s observing police brutality during the arrest of a suspect near Hart’s house.

Hart said the false disorderly conduct charge followed his politely asking a Philadelphia policeman to not use profanity repeatedly when ordering Hart and another man from the arrest scene.

Abu-Jamal, an award-winning broadcast journalist at the time of his 1981 arrest, frequently reported on this kind of rampant police abuse in Philadelphia.

Mumia Court Updates (includes audio) 8/24/12

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