Jaeah is a former reporter at Mother Jones. Her writings have appeared in The Atlantic, the Guardian, Wired, Christian Science Monitor,Global Post,Huffington Post,Talking Points Memo, and Grist. She tweets at @jaeahjlee.
Read Mother Jones reporter Shane Bauer’s firsthand account of his four months spent working as a guard at a corporate-run prison in Louisiana.
It beganwith a complaint about salad.
Since he started serving time in the '70s, Melvin Leroy Tyler has filed dozens of lawsuits advocating better conditions in Missouri prisons, earning himself the nickname King of the Writs. One newspaper dubbed him one of the "finest jailhouse lawyers this state has ever produced." In 1994, Tyler filed a case a case about dangerous conditions at Farmington Correctional Center, including allegations of overcrowding and food contamination. But his complaints would become infamous for a passing mention that the prison cafeteria's salad bar was only available to guards.
Tyler's salad bar protest was held up as exhibit A in the campaign to stem the supposed flood of frivolous prison lawsuits clogging up the nation's courts. Jay Nixon, then Missouri's attorney general (and now its governor), singled out Tyler and sneered that "these recreational litigators can be very creative when it comes to constitutional rights." Other examples of outrageous cases cited by Nixon and 23 of his fellow AGs included an inmate's $1 million suit "because his ice cream had melted," and a demand for LA Gear or Reebok sneakers instead of prison-issued Converse.
As prison populations swelled, the number of federal civil rights cases filed by inmates dropped by more than 70 percent.
Shutting down these lawsuits became a pillar of the tough-on-crime agenda then sweeping Capitol Hill. Under the Prison Litigation Reform Act (PLRA), passed with overwhelming bipartisan support in 1996, prisoners who seek to file federal civil rights cases must first jump through several hoops, like exhausting all internal grievance procedures and paying $350 to file a case.
Yet much of the evidence cited in support of the law was thin. As the bill was making its way through Congress, Jon O. Newman, a federal appeals judge, found that tales of ridiculous lawsuits "were at best highly misleading and, sometimes, simply false." Tyler's complaint had been ripped without context from a case that, Newman wrote, "concerned dangerously unhealthy prison conditions, not the lack of a salad bar."
The law's backers claimed it would protect inmates with legitimate complaints. Instead, it established a labyrinth of red tape. Between 1995 and 2012, as prison populations swelled 40 percent, the number of federal civil rights cases filed by prisoners dropped by more than 70 percent. About one-tenth of those cases resulted in an outcome favoring inmates, a slight decrease from the 1990s. If the PLRA was meant to filter out flimsy lawsuits, we should see more prisoners winning their cases, notes University of Michigan law professor Margo Schlanger. But now, she says, "each success is harder fought."
Human Rights Watch has found that the law is often invoked to throw out cases on technicalities, even suits involving sexual assault, juveniles, or prisoners who are illiterate, deaf, or mentally ill. "This is a classic case of the fox guarding the henhouse," says David Fathi, the director of the American Civil Liberties Union's National Prison Project. "What we have done is dismantle the only oversight system that we had for prisons, which was litigation," adds Schlanger.
"This is a classic case of the fox guarding the henhouse."
Most inmateshave little recourse but to represent themselves. The law further discourages lawyers from taking their suits by capping damages and recoverable costs. "There were never a whole lot of lawyers doing this in the first place," says David Rudovsky, a civil rights attorney in Philadelphia. Suing prisons, he says, "is even more difficult than suing police officers."
Now 73, Melvin Tyler lives in Missouri's Jefferson City Correctional Center, a maximum-security prison located on No More Victims Road, where he is serving a 185-year sentence for rape, assault, and robbery. (He says he was wrongfully convicted; in 2009, the Innocence Project took up his case.) "I picked up a lot of enemies" due to the salad bar case, he tells me. "But if I hadn't intervened, there would have been hundreds of people that would have died."
The Prison Litigation Reform Act, Tyler explains, "destroys the ability of prisoners to seek and pursue legitimate claims." The most unforgiving part of the law, he says, is its filing fee requirement. Sometimes the only way to fund a new lawsuit is to round up a bunch of guys to pool their money. Even though the Supreme Court unanimously shot down a prisoner's challenge to part of the PRLA earlier this year, Tyler is working on a class-action suit questioning the constitutionality of the filing fee—one of more than 45 cases currently on his plate.
The case adds another twist to the intense debate about race and policing.
Jaeah LeeApr. 8, 2016 6:00 AM
Protesters at a February rally in Brooklyn on behalf of the former NYPD officer
On February 11, Peter Liang became a rare statistic: He was the first New York City police officer in more than a decade to be found guilty of shooting and killing a citizen while on duty. Liang, who is Chinese American, was convicted of second-degree manslaughter and one count of official misconduct for the shooting of Akai Gurley, a 28-year-old black man and father, during an encounter in a Brooklyn housing project. In the post-Ferguson era, the case has added another twist to the intense ongoing debate about race and accountability in policing.
On the night of November 20, 2014, Gurley and a friend had just entered an unlit stairwell on the seventh floor of their building. Liang, a 28-year-old rookie cop, was on the stairwell landing above with his partner, on a "vertical patrol" assignment. Liang had his gun drawn, his attorneys told jurors, because the stairwell was dark and police officers are trained that this can be dangerous—for New York cops on vertical patrol, lack of lighting is commonly perceived as a sign of criminal activity. When Liang heard a noise come from below, he testified, he was startled and pulled the trigger of his gun by accident. The bullet ricocheted off a wall along the landing below where Gurley stood, mortally wounding him. Liang told jurors that he did not realize he had shot anyone until he went down the stairs looking for the bullet. Liang said that when he discovered Gurley bleeding on the ground, "I was panicking. I was in shock, in disbelief that someone was actually hit."
In the aftermath, New York Police commissioner William Bratton told reporters that the shooting appeared "to be an accidental discharge, with no intention to strike anybody." But during the trial, prosecutors zeroed in on evidence that Liang failed to administer immediate medical aid as Gurley lay bleeding to death, instead arguing with his partner over whether to call their supervisor. Gurley's friend attempted to give him CPR after receiving instructions from a 911 dispatcher. Liang testified that he tried to request an ambulance over the radio. Transcripts from radio calls, however, did not show him calling for one.
"We kind of had a sense in our hearts that this was going to be the result, because for 150 years, there has been a common phrase in America. This phrase is called 'Not a Chinaman's chance.'"
Liang, whose sentencing is scheduled for April 14, was fired from the department and initially faced up to 15 years in prison. In late March, however, Brooklyn District Attorney Ken Thompson announced that he would not seek prison time for Liang. Thompson instead recommended five years of probation, including six months of home confinement, citing "the unique circumstances" of the case. On Tuesday, Liang's lawyers asked a judge to throw out Liang's conviction, alleging jury misconduct.
In the view of his supporters and some former prosecutors, Liang's conviction is a glaringanomalyamong cops who have killed unarmed civilians, the vast majority of whom don't face criminal charges. Kenneth Montgomery, a former assistant prosecutor in Brooklyn and now a defense attorney, found the conviction somewhat surprising. "When you look at the spectrum of police shooting cases, this seemed to be—I want to be careful because all of these cases are of public concern—less egregious than Anthony Baez, Amadou Diallo," he says. "It seemed to me that the defense had a lot to work with."
Many believe Liang's race was a factor. On February 20, in the wake of Liang's guilty verdict, thousands of people—many of them Asian American—gathered in New York, Los Angeles, Chicago, and Washington, DC, to protest. Demonstrators charged that Liang was not afforded the same protections as other officers because of the color of his skin. Former New York City Comptroller John Liu echoed this sentiment in a speech to the crowd: "Shocking! This is not manslaughter…We kind of had a sense in our hearts that this was going to be the result, because for 150 years, there has been a common phrase in America. This phrase is called 'Not a Chinaman's chance.'" As the writer Jay Caspian Kang noted in a New York Times essay, the Liang protests marked "the most pivotal moment in the Asian American community since the Rodney King riots."
Some of Liang's supporters compared him to past Asian American victims of police brutality, and even went so far as to suggest that both Liang and Gurley were victims of the same kind of oppression. That rhetoric quickly drew heat from Black Lives Matter activists and supporters—includingmanyAsian Americans—who found it offensive and misguided. "[I don't care] how many "black lives matter" signs were flying at the Peter Liang protest," organizer Johnetta Elzie tweeted. "That's rooted in anti-blackness + supporting white supremacy." Kang described the reactions from some Asian Americans as "the stunted language of a people who do not yet know how to talk about injustice":
The protesters who took to the streets on Saturday are trying, in their way, to create a new political language for Asian Americans, but this language comes without any edifying history—no amount of nuance or qualification or appeal to Martin Luther King will change the fact that the first massive, nationwide Asian American protest in years was held in defense of a police officer who shot and killed an innocent black man....And yet it would be catastrophic to ignore the protesters' concerns altogether.
Liang's conviction is indeed rare for cops. "Ten years ago, he wouldn't have been prosecuted," Stephen Saltzburg, a George Washington University law professor, toldThe Atlantic. "And if he was, they would have acquitted him."
One germane example comes from January 2004, when NYPD officer Richard Neri shot and killed a 19-year-old black man. Timothy Stansbury and two friends were walking up a dark stairwell to the top floor of a Brooklyn housing project while Neri was patrolling the building with another officer in the dark, their guns drawn. Neri and Stansbury arrived on opposite sides of a stairwell landing door and reached simultaneously for the handle. When the door opened, Neri fired a single shot, fatally striking Stansbury in the chest. The next day, then-New York Police Commissioner Raymond Kelly told reporters that the shooting appeared to be unjustified. Neri was suspended for 30 days and stripped of his gun, but the grand jury declined to indict him.
After Gurley's shooting, Bratton said the NYPD would review the policy but maintained that vertical patrols were "an essential part of policing."
Critics called it a "cold-blooded killing" and demanded the NYPD review its policy allowing officers to patrol with their weapons drawn. But the policy remained intact. After Gurley's shooting, Bratton said the NYPD would review the policy but maintained that vertical patrols were "an essential part of policing."
Several media reports have pointedout the parallels between the Neri and Liang cases. But a key difference between them, Montgomery explains, is that Neri made the unusual choice to testify before the grand jury. Neri told the jurors that he had his gun pointed down and his finger on the side of the barrel, in compliance with his training. When the stairwell door opened, he said, he had been startled and had not intended to fire. He said he couldn't recall raising his arm and moving his finger to the trigger. Another key difference, Montgomery says, was that Neri's defense showed that Neri attempted to give CPR to Stansbury.
Liang's own choice not to testify to the grand jury may also have made a difference, according to Montgomery. "Who's to say what would have happened if Liang went in there and was emotional?" He also noted the sway that prosecutors have in grand jury hearings, and that Thompson had a track record for successfully prosecuting officers involved in fatal shootings.
Liang's partner during the incident, Shaun Landau, was granted immunity after he agreed to testify in the closed-door proceedings. Later, during the trial, Landau testified that he and Liang didn't immediately realize that the gunshot had struck Gurley. He also told jurors that he'd received inadequate CPR training at the academy—and that he thought Gurley's friend was better qualified to perform CPR at the scene. Liang and Landau both testified at trial that the CPR training they received was shoddy, prompting an internal affairs investigation that resulted in the stripping of their CPR instructor's badge and gun.
Notably, Liang's case appeared to lack the police union support that usually comes in the wake of officer-involved shootings. Some stories havepointed out the relative absence during Liang's trial of the Patrolmen's Benevolence Association, whose head Patrick Lynch has long been regarded as a controversial figure for coming to the defense of police officers accused of committing crimes—including the NYPD's Daniel Pantaleo, whom a grand jury declined to indict for choking Eric Garner to death in July 2014. The national controversy over policing may not have helped Liang, either: His case came at a time when public confidence in the police had reached its lowest point in two decades.
One spring evening in 2012, after getting off a shift at Señor Frog's bar and grill in Las Vegas, Candice Smith drove to the Palace Station casino to cash her paycheck. When she returned to her car, it wouldn't start. She knew what the problem was: the starter kill switch her lender had installed on the vehicle. To restart the car after business hours, she needed to call the device manufacturer's hotline number and get an unlock code. That night, the process took four hours.
"These people could do whatever they wanted and there was nothing I could do to stop them."
Smith had bought her used Chevy Cobalt the previous year, financing the purchase through a subprime auto lender called CAG Acceptance. The sales contract required Smith, whose credit score was 690—prime by most definitions—to pay $218 every two weeks for four years. The GPS-enabled kill switch would allow CAG Acceptance to disable her starter if her payments were more than 30 days late.
In 2012, after the restaurant cut back her work hours, Smith—then 29 years old and living paycheck to paycheck—did fall behind a few times, although never by 30 days. Yet her starter was disabled four times that year, she says. On one occasion, she was getting an oil change at the dealership that had sold her the car—a mechanic removed the device so she could leave.
Three months later, Smith received a letter from CAG Acceptance's collections department claiming she owed more than $1,700. Smith had submitted four payments, legal research later determined, that were never cashed or credited to her account. But when Smith called to find out what had happened, the company didn't explain. Instead, it filed a court motion to repossess her car. In the meantime, a judge ordered her to reinstall the tracking device. (When she did, Smith says, it beeped "incessantly" for three days—warning that her payment was due—before her car was disabled again.)
She hired a lawyer and in December reached a settlement with CAG Acceptance, which agreed to refund some of the uncredited payments; the car went back to the dealer. "The entire process made me feel like I had no rights," Smith told Nevada legislators at a 2013 hearing on the devices. "These people could do whatever they wanted and there was nothing I could do to stop them." The lawsuit left her with a dismal credit score of 324. The next time she bought a car, she told me, she paid in cash.
"Payment assurance" devices, as they are known throughout the industry, were first marketed in the late 1990s by a company called PassTime, but sales really took off in the 2000s, when GPS technology made it easy for lenders to find and repossess the vehicles. PassTime and its competitors also offer separate payment reminder devices that beep when a bill is due. Gadgets with some combination of these features can be found in up to 70 percent of cars financed by subprime loans, says Corinne Kirkendall, a vice president for PassTime—which Inc. magazine singled out last year as one of America's fastest-growing companies.
This is a positive trend, insists Nicole Munro, an attorney for the Telematics Solution Provider Association, an industry trade group. By keeping borrowers on track, the technology reduces risk for lenders, thereby opening up credit for people who might not otherwise qualify. PassTime claims its technology has reduced delinquency rates for its dealers from 27 percent to 5 percent, on average.
Subprime auto dealers "are accounting for risk with the interest rates and putting on these devices."
If payment assurance devices really reduced risk for subprime lenders, we should expect to see lower interest rates on those loans, counters Lisa Stifler, an attorney with the Center for Responsible Lending. "The reality is that subprime dealers continue to make loans at interest rates that are at the state maximum," she says. "They're accounting for risk with the interest rates and putting on these devices."
Stories like Smith's are becoming more common. In September 2014, the Legal Aid Center of Southern Nevada filed a class-action lawsuit against CAG Acceptance, claiming the company had violated state law and its own contracts by activating the devices on borrowers who were not in default. The lead plaintiff, a single mother of three, allegedly wasn't even told her minivan contained a kill switch until after she'd made her down payment. At the time it was activated, she was late on a payment but still 20 days away from defaulting.
Lawmakers in New Jersey, New York, Nevada, and Virginia have introduced bills banning kill switches or requiring dealers and lenders to inform buyers when they install one—and to provide ample notice before activating it. California already forbids used-car dealerships that finance their own sales from requiring payment assurance devices as a loan condition, and they must give 5 to 10 days' notice before disabling a vehicle.
Repo rates, meanwhile, are on the rise—they jumped more than 70 percent between 2013 and 2014—and there have been other danger signs in the marketplace. According to the research firm Moody's Analytics, nearly 4 percent of people who took out car loans in early 2014 had missed at least one monthly payment by September 2015—"the highest level of early loan trouble since 2008."
In a memo to used-car dealers last May, David Meyer, an executive vice president with PassTime rival Spireon, warned of another bubble in the making. "Lenders and dealers are going ever deeper with subprime loans," he wrote, and they are "setting themselves up for substantial losses if and when the subprime auto-lending crisis hits." He added that for anyone "in the business of putting people into cars when no one else will," choosing the right vehicle-tracking system—Spireon's, of course—was a must.
New research says the most complete data has been right under our noses.
Jaeah LeeMar. 17, 2016 4:00 PM
One of the biggest frustrations about reporting on fatal police shootings is just how little we know about them. As reporters and criminologists have pointed out repeatedly, federal data on violent crime and mortality trends does a poor job of capturing how often, and under what circumstances, cops kill unarmed people. Last December, FBI Director James Comey called the agency's system for tracking fatal police shootings a "travesty," and promised to expand it by 2017. The lack of a reliable national source of data has prompted newsoutlets, academics, and citizens to build their own datasets.
Now, researchers from Harvard University and Northeastern University say they have identified an overlooked source that could offer the most complete accounting yet of fatal encounters with police. In a paper published in the American Journal of Public Health, the researchers point to the National Violent Death Reporting System, a database maintained by the Centers for Disease Control and Prevention. The CDC's trove of data on violent deaths, they write, "captures detailed coded data and rich narratives that describe the precipitating circumstances and incident dynamics for all suicides and homicides." In other words, the data gives a pretty clear picture of the deceased and the moments leading up to their death.
Thirty-two states are now reporting to the database, though current data is only available for 16 states. Surprisingly, even in just those states, Barber and her colleagues identified 1,552 police-involved homicides between 2005 and 2012. That's 71 percent more than the 906 cases identified in the CDC's Vital Statistics, and more than double the 742 cases reported in the FBI's Supplemental Homicide Reports during the same period.
The paper also found stark racial disparities in the available violent death data, consistent with disparities in federal data that have been noted previously:
Expanding the National Violent Death Reporting System to include all 50 states, the researchers conclude, will offer not only a more accurate count of police homicides, but also a detailed narrative "on the people, weapons, and circumstances involved."
Medical researchers have known for years that America's leading cause of death, heart disease, kills people of color at a higher rate than it does white people. A new study out this week suggests that the reasons why may bemuch more heavily influenced by systemic issues, such as emergency room care, than previously thought.
Researchers found that California hospitals with the highest share of black patients exceeded emergency room capacity more frequently than other hospitals, which forces them to reroute ambulances carrying overflow patients to other medical facilities. The study, funded by the National Institute of Health and published in the medical journal BMJ Open, reviewed data on medical emergency services in 26 California counties serving nearly 30,000 patients between 2001 and 2011.
This rerouting process, known as ambulance diversion, can lead to life-threatening delays in treatment for time-sensitive medical emergencies like heart attacks and increases the likelihood that patients will die, the authors say.
"Cardiologists often say that time is muscle, or time is heart tissue," says Renee Hsia, an ER doctor and professor at the University of California-San Francisco who co-wrote the study. "When you have a clot, every minute matters. Even if you don't die right away, you have a poorer heart over the long term."
The study found that both black and white patients whose nearest hospitals were affected by ambulance diversion were less likely to receive standardtreatments and less likely to livebeyond a year after their heart attack, compared with patients at hospitals that don't divert ambulances.
While the study focuses on California counties, the issue likely affects other states as well, Hsia said.
This new research may help illuminate why the rate of deaths related to heart disease is 33 percent higher for black Americans than it is for the overall US population, according to American Heart Association figures. Other experts have documented a variety of reasons for this disparity, ranging from less access among people of color to insurance and consistent medical care, longer waits for emergency medical help from first responders, less knowledge about symptoms, and implicit bias among physicians.
Emergency room overcrowding is caused by a long list of issues, Hsia said, and gravely ill patients are a special challenge at busy hospitals because they require more care.
Each new patient—especially one with a critical condition like a heart attack—requires extensive staff attention and technological resources before and after a physician sees him or her. When a person with a heart attack arrives in a hospital's ambulance bay, for example, they must be unloaded by paramedics, directed to a bed by a triage nurse, undressed by a technician or medical assistant, and taken to have blood drawn by a nurse, Hsia said. Then a radiology technician must take a chest X-ray and process and print it, while another nurse or technician needs to take an EKG.
"All of these things take time," she said, adding that such patients have more specialized needs after they are diagnosed."If the physician decides the patient needs treatment for a heart attack, they have to activate cath lab, and a clerk has to page all the staff that needs to come in. Then you need all those people to come in, and you need a transport team to take the patient to the lab."
"Those are all the steps where you could see bottlenecks happen," Hsia said.
The authors found that hospitals with the 10th-highest share of black patients experienced overcapacity more frequently relative to other hospitals, forcing them to reroute ambulances to the next closest facilities. The same trend held for emergency rooms serving at least twice as many black patients as other hospitals within a 15-mile radius.
Previous studies have found that hospitals serving areas with a relatively high share of black residents have other problems that may affect the care they provide. Such hospitalsare more likely to experience money shortages, in part because they are more likely to rely on public funding. Also, their patients are more often uninsured or covered by Medicare or Medicaid—which typically reimburse bills at a lower rate than private insurers. The shortage in funding can in turn make it tough to compete with privately funded hospitals when hiring specialized medical talent, such as cardiologists.
"These are structural disparities that people can't see but are very real," Hsia said.