Photo: kalavinka; Edited: Jared Rodriguez/Truthout

This exclusive report was written by Jason Leopold and originally publishedon Truthout

Have you ever filed a Freedom of Information Act (FOIA) request with the FBI and received a written response from the agency stating that it could not locate records responsive to your request?

If so, there’s a chance the FBI may have found some documents, but for unknown reasons, the agency’s FOIA analysts determined it was not responsive and “blackballed” the file, crucial information the FBI withholds from a requester when it issues a “no records” response.

The FBI’s practice of “blackballing” files has never been publicly disclosed before. With the exception of one open government expert, a half-dozen others contacted by Truthout said they were unfamiliar with the process of “blackballing” and had never heard of the term.

Trevor Griffey learned about “blackballing” last year when he filed a FOIA/Privacy Act request with the FBI to determine whether Manning Marable, a Columbia University professor who founded the Institute for Research in African-American Studies, sought the FBI’s files on Malcolm X under FOIA. At the time of his death last April, Marable had just finished writing an exhaustive biography on the late civil rights activist. Griffey filed the FOIA hoping he would receive records to assist him with research related to a long-term civil rights project he has been working on.

In a letter the agency sent in response to his FOIA, the FBI told Griffey that it could not locate “main file records” on Marable responsive to his request. Last November, in response to a FOIA request Truthout filed with the FBI for a wide-range of documents on the Occupy Wall Street, the agency also said it was unable to “identify main file records responsive to [our] FOIA,” despite the fact that internal FBI documents related to the protest movement had already been posted on the Internet. The FBI has been criticized in the past for responding to more than half of the FOIA requests the agency had received by claiming it could not locate responsive files.

Griffey, who also teaches US history at The Evergreen State College in Olympia, Washington, and is co-editor of the book, “Black Power at Work: Community Control, Affirmative Action and the Construction Industry,” was baffled. He found it difficult to believe that Marable would not have filed a FOIA for Malcolm X’s FBI file. So, he sent an email to an FBI FOIA analyst asking for clarification.

The FBI FOIA analyst responded to Griffey in an email, asking him to supply additional “keywords” to assist in a search of the agency’s main file records for documents on Marable responsive to his FOIA request. The analyst then disclosed to Griffey, perhaps mistakenly, that a search for previous requests for records on Marable turned up a single file that was “blackballed” per the agency’s “standard operating procedure.”

So last May, Griffey again turned to FOIA, this time to try and gain insight into the blackballing process. He filed a FOIA request with the FBI seeking a copy of the agency’s standard operating procedure for “blackballing” files.

Two months later, he received five pages from an untitled and undated PowerPoint presentation that outlined procedures for blackballing files from FOIA requests. The FBI cited three exemptions under the law to justify withholding a complete and unredacted copy of the PowerPoint:

(b)(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

(b)(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

C. Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

E. Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law …

Griffey appealed the FBI’s decision to withhold information contained in the PowerPoint under the (b)(7)(E) exemption, but it was denied.

Still, the PowerPoint pages the FBI did turn over to Griffey provide insight into the “blackballing” process. On a page titled, “Blackball Files,” it says files identified as 190 and 197 “main files,” which are FBI classifications pertaining to FOIA/Privacy Act requests for files on people and civil litigation, are blackballed unless “specifically ask[ed] for” by the requester when an initial FOIA request is made.

Moreover, the agency deems certain “control files,” “separate files which relate to a specific matter and is used as an administrative means of managing, or ‘controlling’ a certain program or investigative matter,” that pop up and are unresponsive to a FOIA to be ripe for blackballing. However, a FOIA analyst must first get permission from a supervisor before a “control file” can be blackballed.

Finally, according to the PowerPoint, some files are automatically blackballed by an FBI FOIA analyst, but the public is not permitted to know the classification of files that fall into that category because the FBI redacted that part of the PowerPoint, claiming disclosure would reveal “techniques and procedures for law enforcement investigations and procedures.”

“Not only are we not told when the FBI withholds material from FOIA requests, but we are not even allowed to know all of the kinds of material it withholds,” Griffey told Truthout. “The law itself and not just its enforcement, is now effectively secret.”

But Bill Carter, an FBI spokesman, told Truthout in an interview that “blackballing” is not about secrecy nor is the process used in any way to conceal responsive records, which the Justice Department revealed it has been doing for more than two decades in certain cases.

“Blackball is a term of art used by the [FBI's] FOIA section people in the records management division,” he said. “It’s an unfortunate term. It applies to people and events. It means that we pulled a file that initially looked responsive but after a review it turned out it wasn’t because the file didn’t match the requesters’ specific request” for records.

Carter sent Truthout an email that contained an explanation of the blackballing process as provided to him by Dennis Argall, the assistant section chief of the Record/Information Dissemination Section, FBI’s Records Management Division:

“[B]lackball” is a term we typically use to describe a file (not a request) that initially looked responsive but upon review we find it’s for a different guy or event. It can also be used to describe a file that we won’t process because, i.e., a guy makes a request for his “FBI file” in 2005 and [we] process it for him. When he makes another request for his “FBI file” in 2011, we will only process his “records” but will not process the file that was created to respond to the 2005 FOIA request, which is 190 file series [the classification the FBI uses for files requested on people].

That’s exactly how the FBI described the blackballing process to attorney Kel McClanahan, executive director of Arlington, Virginia-based National Security Counselors, a public interest law firm.

McClanahan told Truthout in an email interview that he first learned about blackballing when the term was used in a set of FBI “processing notes” he requested from the agency to determine how FBI FOIA analysts had handled one of his FOIA requests.

Although McClanahan believes there is “definitely a place for blackballing in the FOIA process” he said the way the FBI “does blackballing leaves a lot to be desired.”

“First of all, even though [the FBI] may blackball 50 records and release 3, they never tell the requester about the 50,” McClanahan said, hitting on Griffey’s main complaint about blackballing. “They never mention word one about ‘and we found other records that we deemed non-responsive.’ The requester is left to wonder why the FBI only found 3 records about the subject in question and he will never know that they found 50 others that they ultimately deemed non-responsive unless he has the foresight to FOIA the FBI’s processing notes for his request. Knowledge like that is very important when a requester is trying to decide whether or not to tie up [the FBI's Office of Information Policy] with an administrative appeal, let alone litigation.”

McClanahan said his concerns would largely be addressed if the FBI “only blackballed records for good reasons.”

“If I could trust the FBI only to blackball things that were clearly non-responsive, I don’t need to know that they found completely unrelated records,” he added. “However, that’s not what the FBI does. I have seen it blackball records because they ‘weren’t FBI records,’ even though they were in FBI files (they were FBI copies of other agencies’ records, which any FOIA person worth his salt knows are still responsive to a FOIA request made to FBI). I’ve seen it blackball records because the request asked for ‘internal FBI records’ and the records in question were sent outside of the FBI, based on a strained interpretation of the word ‘internal.’”

The FBI will be forced to make a choice “if it wants to apply FOIA correctly,” McClanahan said.

“The agency can either limit its blackballing to records that nobody would think are responsive (e.g. different people with the same name, records outside a set time frame); or it can tell requesters in the administrative stage that it determined that certain records were non-responsive and why,” he said. “Failing to do either, however, is bad FOIA.”

Analysis of government immigration data provided to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in late December — almost two years after TRAC had requested it — show that “many fewer individuals were apprehended, detained and deported by the agency than were claimed in its official statements” — congressional testimony, press releases, and the agency’s latest 2010 Yearbook of Immigration Statistics, TRAC said.

In its initial FOIA request in May 2010, TRAC asked for specific information about all individuals who had been arrested, detained, charged, returned or removed from the country for the period beginning October 1, 2004 to date. According to TRAC, “in its initial and incomplete response, however, ICE so far has only provided TRAC with information through FY 2005. The agency said it would provide detailed information about the more recent years later.”

When compared with various public statements by the agency, however, TRAC’s analysis of this limited case-by-case information provided found vast discrepancies. Among them: ICE statements claimed almost five times more individual apprehensions than revealed in the data, as well as 24 times more individuals deported and 34 times more detentions.

Those records were provided to TRAC by Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security (DHS), under the Freedom of Information Act (FOIA).

When the PBS series, “Frontline,” did an hour-long piece on the immigration situation in the US today, a White House immigration spokesperson confirmed that the Obama Administration is deporting 400,000 people every year and racking up the largest number of deportations of any president in American history

TRAC says, “Details about the vast differences between the agency activities documented by the data and its public statements are laid out in a FOIA appeal filed by TRAC on January 4. The surprising size of the discrepancies, the TRAC appeal said, indicated that either “ICE has been making highly exaggerated and inaccurate claims about the level of its enforcement activities,” or it is “withholding on a massive scale.”

TRAC’s appeal emphasized that this was not an inconsequential bookkeeping problem, noting “that the alleged failure of the federal government to enforce the immigration laws has been a hotly debated topic during both the Bush and Obama administrations.”

“Thus, the agency’s apparent inability to substantiate the level of its claimed enforcement activities is a very significant matter,” the appeal continued. “Indeed it is central to the current public debate on federal enforcement policy in the ongoing presidential election campaign.”

Recent press accounts credit the Obama Administration, and President Obama specifically, for ordering the deportation of more undocumented persons than any other president in US history. However, the large numbers of deportees reported by government immigration authorities have themselves become problematic.

Various organizations that specialize in immigration matters have concluded that the total number of people deported has included a preponderance of those whose “crimes” have been minor – broken tail lights at traffic stops, expired driver’s licenses, other minor infractions of the law.

Many of these referrals for deportation have been made by a program that was supposed to isolate serious criminals – the Secure Communities program –in which local law enforcement authorities routinely enter fingerprints and other data of people they arrest locally into an immigration database.

Other parts of the database are provided through a program known as 287(g), which gives local law enforcement personnel the authority to act as proxies for Federal immigration officials in arresting and detaining people they believe are in the US illegally.

Both programs have come under heavy fire from immigration and human rights groups on issues including ethnic profiling, and the inexperience of local law enforcement officers with immigration law, which is one of the most complex branches of law.

TRAC seeks the ICE documents under the Freedom of Information Act (FOIA). Given the long delay in responding to the FOIA request, TRAC requested a formal agency investigation of the matter or that it be referred to the Office of Inspector General.

TRAC said, “As the unlawful failure of ICE to provide the requested data continued well beyond the legal deadlines, TRAC engaged in numerous unsuccessful attempts to resolve the matter with agency officials and in late November of 2010 asked the Office of Government Information Services (OGIS) for assistance in persuading the agency to act on our request.”

It added, “OGIS, located in the National Archives and Records Administration, was created by Congress in 2007 to serve as a FOIA ‘ombudsman’ resolving conflicts between requesters and agencies. But TRAC says this approach “was not very successful,” and in mid-October 2011 James V.M.L. Holzer, the Director of Homeland Security’s Public Liaison and Director of Disclosure and FOIA Operations, intervened in the case.

The organization added, “The failure of ICE to abide by the mandate of the FOIA in a timely way about its immigration enforcement actions during the five-year period covered by our May 2010 request starkly contrasts with the repeated transparency statements of President Obama, Attorney General Eric Holder and many other administration officials since they came to office almost three years ago.”

TRAC also said ICE’s exaggeration “appears to be a part of a larger pattern.” It said that, in a three-page letter dated September of 2010, for example, ICE informed TRAC that key statistical data it had previously provided us were now “unavailable” and that the agency without explanation, was unilaterally imposing a $450,000 FOIA processing fee.

ICE also claimed that Syracuse University was not an educational institution. Earlier in the same year a sister agency in the Department of Homeland Security — U.S. Citizenship and Immigration Services (USCIS) — demanded an $111,930 processing fee.

“While time consuming, these and other Administration feints, have not stopped TRAC from its two decades long campaign to obtain revealing information from ICE, USCIS, the IRS, the Justice Department and other agencies, TRAC declared.

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.

What you may not know is that the US also tops the charts in the numbers of youth offenders serving life without parole sentences in adult US prisons. The score? The world: 0; the US: 2,570.

Right. The US is only country in the world that incarcerates people in adult prisons for crimes they committed when they were below the age of 18.

Furthermore, those prisoners experience conditions that violate fundamental human rights. That’s the depressing conclusion of a new study by Human Rights Watch, “Against All Odds: Prison Conditions for Youth Offenders Serving Life without Parole Sentences in the United States.”

Three months from now, in March, the US Supreme Court will consider the constitutionality of the life-without-parole sentence for youth offenders.

The 47-page report draws on six years of research, and interviews and correspondence with correctional officials and hundreds of youth offenders serving life without parole. Human Rights Watch found that nearly every youth offender serving life without parole reported physical violence or sexual abuse by other inmates or corrections officers. Nationwide statistics indicate that young prisoners serving any type of sentence in adult prison, as well as those with a slight build and low body weight, are most vulnerable to attack.

“Children who commit serious crimes and who inflict harm on others should be held accountable,” said Alison Parker, director of the US program at Human Rights Watch and co-author of the report. “But neither youth offenders, nor any other prisoner, should endure any form of physical abuse.” Most of the life-without-parole inmates have been convicted of homicide offenses.

“The penalty [of life without parole] forswears altogether the rehabilitative ideal…. For juvenile offenders, who are most in need of and receptive to rehabilitation, the absence of rehabilitative opportunities or treatment makes the disproportionality of the sentence all the more evident,” the report says.

This new research sheds light on the severity of prison conditions for those serving this sentence, Human Rights Watch said.

“Scared to death,” said a youth offender serving life without parole in California. “I was all of 5’6”, 130 pounds and they sent me to PBSP (Pelican Bay State Prison in California). I tried to kill myself because I couldn’t stand what the voices in my head was saying…. ‘You’re gonna get raped.’ ‘You won’t ever see your family again.’”

Youth offenders are serving life without parole sentences in 38 states and in federal prisons. They often enter adult prison while still children, although some have reached young adulthood by the time their trials end and they begin serving their sentences. Prison policies that channel resources to inmates who are expected to be released often result in denying youth serving life without parole opportunities for education, development, and rehabilitation, Human Rights Watch found.

Youth offenders commonly reported having thoughts of suicide, feelings of intense loneliness, or depression. Isolation was frequently compounded by solitary confinement. In the past five years, at least three youth offenders serving life without parole sentences in the United States have committed suicide.

The federal government and the states should abolish the sentence of life without parole for crimes committed by children, Human Rights Watch said. Government officials responsible for youth offenders should reform confinement conditions to accommodate their particular vulnerabilities, needs, and capacities to mature, reflect upon the harm they have caused, and change.

“Because children are different, shutting the door to growth, development, and rehabilitation turns a sentence of life without parole into a punishment of excessive cruelty,” said Parker. “Youth offenders should be given a path to rehabilitation while in prison – not forced to forfeit their future.”

Yet, lifers with the opportunity of parole (LWOP’s) experience a lack of educational opportunities. “LWOPs cannot participate in many rehabilitative, educational, vocational training or other assignments available to other inmates with parole dates…. The supposed rationality is that LWOPs are beyond salvagability and would just be taking a spot away from someone who will actually return to society someday,” the report says, quoting a youth offender serving life without parole in California.

Another inmate, this one in Arkansas, told Human Rights Watch (HRW), “I would be ever grateful… for the chance to spend my life now for some good reason. I would go to the most dangerous parts of Afghanistan…or jump on the first manned mission to Mars…. if the state were to offer me some opportunity to end my life doing some good, rather than a slow-wasting plague to the world, it would be a great mercy to me.”

The HRW report said, “Our research has found that youth offenders are among the inmates most susceptible to physical and sexual assault during their incarceration. Many are placed in isolated segregation to protect them or to punish them, some spending years without any but the most fleeting human contact.

Because of their sentence, youth offenders serving life without parole face the additional burden of being classified in ways that deprive them of meaningful opportunities while in prison. Many are denied access to educational and vocational programs available to other inmates. Finally, facing violence, stultifying conditions, and the prospect of lifelong separation from family and friends, many youth offenders experience depression and intense loneliness. Failed by prison mental health services, many contemplate and attempt suicide; some succeed.”

The report found that none of the 560 youthful offenders contacted by Human Rights Watch had managed to avoid violence in prison. When prison officials tolerate such violence, it constitutes a serious human rights abuse.

Youth offenders often spend significant amounts of their time in US prisons isolated from the general prison population. Such segregation can be an attempt to protect vulnerable youth offenders from the general population, to punish infractions of prison rules, or to manage particular categories of inmates, such as alleged gang members.

Youth offenders frequently described their experience in segregation as a profoundly difficult ordeal. Life in long-term isolation usually involves segregating inmates for 23 or more hours a day in their cells. Offenders contacted by Human Rights Watch described the devastating loneliness of spending their days alone, without any human contact, except for when a guard passes them a food tray through a slot in the door, or when guards touch their wrists.

HRW makes a series of recommendations to federal, state and local judges and prison officials. All are preceded by HRW’s longstanding call to state and federal governments to “abolish the life without parole sentence for all youth offenders and abolish the automatic trial of youth in adult criminal courts and their mandatory incarceration in adult prisons.”

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.

The Iraq war isn’t over.

For tens of thousands of soldiers returning from the battlefield, it never will be.

Some of these men and women will turn to alcohol and drugs to ease their mental injuries; some will end up homeless, unemployed and divorced. Some will commit suicide. Most will be forgotten.

That will be one of the lasting legacies of the nearly nine-year-long conflict.

Fortunately, there are journalists like Joshua Phillips who have taken great pains to preserve the memories of a handful of veterans whose lives have been ravaged by the war.

Phillips is the author of “None of Us Were Like This Before: American Soldiers and Torture,” a harrowing book about the torture of prisoners in Iraq and the deep psychological scars it left on the members of one battalion who dispensed pain to their victims.

In this compelling and heartrending on-camera interview, Phillips, who spent more than five years researching and writing “None of Us Were Like This Before,” discusses his investigation into the 2004 death of Army Sgt. Adam Gray, and how it led him to uncover a tragic story about torture’s other victims.

From July to September, only 13.8 per cent of the total were charged with having engaged in criminal activities.

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University said that its findings “appear to contrast sharply” with the White House’s announcement that: “Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States.” TRAC said the findings also are “hard to reconcile with ICE’s recent press statements that claimed that during the past year the agency had targeted a large and increasing number of convicted criminals for deportation.”

TRAC conducted a case-by-case analysis of records covering all proceedings filed in the Immigration Courts. They were obtained from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act (FOIA).

EOIR, a part of the Department of Justice, administers the nation’s special administrative court system charged with deciding whether noncitizens should be deported or are legally entitled to remain in the country.

In previous analyses of Secure Communities data, such organizations as the American Civil Liberties Union (ACLU) have discovered that ICE’s “serious criminals” include people driving with broken taillights, others wanted for minor shoplifting offenses, and drivers who have failed to pay traffic tickets.

“Not only has ICE targeted relatively few criminals as the basis for seeking deportation in these court proceedings, but this proportion has been declining steadily throughout the past year: 15.8 percent were charged with engaging in criminal activity during the first quarter period (October – December 2010), 15.1 percent during the second quarter (January – March 2011), 14.9 percent during the third quarter (April – June 2011), and finally 13.8 percent during the fourth quarter (July – September 2011). The average rate across the four quarters for FY 2011 was 14.9 percent,” TRAC said.

These results are based upon TRAC’s analyses of case-by-case records. These same case-by-case court records showed that during FY 2011 ICE initiated deportation proceedings against 188,770 individuals who were charged only with violating immigration rules. This amounted to 83.4 percent of the total cases. The proportion charged only with violating immigration rules was up slightly over levels in FY 2010 when 81.9 percent were so charged.

The number of individuals ICE sought to deport on national security or terrorism grounds — always few in number — also fell this past year. During FY 2010 a total of 42 deportation proceedings in the Immigration Courts included these grounds. This fell to only 30 during the past year, TRAC said.

The organization was sharply critical of ICE for failing to give TRAC access to documents it is permitted to have under the Freedom of Information Act. (FOIA)

TRAC says, “Unfortunately, while the agency could easily clear up these apparent discrepancies it has chosen not to do so. Indeed, for twenty months, in clear violation of public disclosure laws, ICE has persisted in withholding from TRAC the case-by-case data TRAC requested under FOIA that the agency maintains on these same court proceedings — information precisely parallel to what the Department of Justice already determined must be released to the public from its own files. DHS and other government offices have failed to rectify this matter despite TRAC’s appeals to DHS’s Director of Disclosure and FOIA Operations, as well as to the Office of Government Information Services (OGIS).”

TRAC added, “The records ICE is withholding would show just which ICE programs — such as Secure Communities or others — have contributed to fewer alleged criminals being targeted for deportation in court proceedings. The data would also allow the public to judge whether ICE’s actual activities match ICE’s announced policies to target serious criminals, and those who pose threats to public safety, as well as to better monitor how the agency exercises prosecutorial discretion in whom it seeks to deport.”

In addition, TRAC says it contacted ICE’s Public Relations office on November 7, 2011 asking for explanations of the figures given in the agency’s October 18, 2011 press release that claimed the agency’s FY 2011 accomplishments closely matched announced ICE priorities. At a meeting with ICE officials November 10, the agency promised to promptly provide answers to a series of TRAC questions that asked for details backing up the agency’s claims. Again and again, however, the promised answers did not materialize. ICE’s Public Affairs office continues to say the promised answers will be forthcoming.

On the basis of the extremely detailed and timely records that TRAC has obtained, “enforcement patterns can be determined for each state, Immigration Court and hearing location. What were the charges brought against each of the individuals in these various locations? What was their nationality? You can now access these detailed and highly localized portraits on TRAC’s public website by accessing a new special web-based interactive tool,” TRAC said.

Comprehensive data covering FY 1992 through FY 2011 are now included. TRAC’s app lets you track — on a charge-by-charge basis — how well or poorly the deportation proceedings initiated by ICE actually match its announced priorities and policies. With the prosecutorial discretion ICE is asking its attorneys and enforcement personnel to exercise, are the agency’s limited resources being focused on high priority targets for deportation? Those charged simply with entry without inspection are separately enumerated among these charge classes. Also included is information on whether the individual charged was a so-called “aggravated” felon, or charged with some other criminal violation.

Meanwhile, the American Civil Liberties Union (ACLU) continues to attack the program known as Secure Communities, or S-Comm, for failing to “immediately ensnare any immigrant in the deportation pipeline the moment they come into contact with the criminal justice system.”

The ACLU says “Detain first, investigate later — that is Immigration and Customs Enforcement’s (ICE) mantra when it comes to its Secure Communities (“S-Comm”) program.”

It explains: “Under S-Comm, the fingerprints of every person arrested by the police are shared with ICE at the moment they are booked into police custody. Without investigating the person’s immigration status, ICE immediately sends an “immigration detainer” or a request back to the police if they want the person to continue to be detained for immigration purposes. Detain first, investigate later.”

The ACLU asks, “See a problem with this? Not only does it violate the Fourth Amendment’s basic prohibition against detaining a person without probable cause to do so, but it commonly ensnares the wrong people, including people who are not even immigrants, but United States citizens, causing them to be unlawfully detained.”

As an example, the ACLU presents the case of Antonio Montejano, a U.S. citizen who was born in Los Angeles.

This is what the ACLU wrote: “A few weeks ago, Antonio was arrested by the Santa Monica Police Department for shoplifting. He accidentally left a Sears store without paying for the candy his young children had taken and eaten while in the store. One of his children also placed a $10 perfume bottle in a bag that had already been paid for.

“When security guards stopped Antonio, accusing him of stealing the perfume, Antonio explained that it was an honest mistake and that he would be happy to pay for it. After a long back and forth with the security guards, the police were called and Antonio was taken into custody.

“Antonio normally would have been released from Santa Monica Police custody within hours of being booked into their custody. But ICE interfered through S-Comm. When Antonio was booked, ICE immediately placed an “immigration detainer” on him, instructing the local authorities to detain him until they could pick him up.

“Antonio spent four haunting and unwarranted days in jail on the immigration detainer. For two of those days, Antonio was detained in a temporary holding cell in Los Angeles County Sheriff’s custody that only had chairs, no beds. The authorities forced him to sleep on the hard floor, depriving him of any mattress or blankets, a practice the federal courts have long denounced as flagrantly unconstitutional. Antonio repeatedly protested to jail authorities that he was a U.S. citizen. But only after the ACLU of Southern California contacted a senior ICE official four days later, did they finally agree to lift the detainer.

“ICE, quite clearly, has no business arresting and detaining American citizens. But as described in a recent report by the Warren Institute at University of California — Berkeley, they do so over and over again through the fundamentally-flawed S-Comm program. (ICE’s own data in the first year of S-Comm activation revealed that five percent of persons identified by S-Comm were in fact U.S. citizens.) And they do so by enlisting the unwitting participation of local jail authorities in these unconstitutional practices.

“The costs and consequences of S-Comm’s detain first, investigate later are borne out every day in the jails and police stations across the country where non-deportable citizens and noncitizens suffer needless detention, while they beg for ICE to finally investigate their cases so that they may be released from jail.”

President Obama has failed to keep the promise he made during his presidential campaign to introduce legislation to achieve comprehensive immigration reform. Instead, he has placed more personnel on the Southern US border, and deported more people during his term than any other president in US history.

The continued absence of a body of immigration law worthy of a superpower is no doubt due in part to the intransigence of the Republicans in Congress. And the President’s relative silence on this issue must surely give the GOP the sense that immigration reform is nowhere near Obama’s top priorities.

Sadly, they could well be right.

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.

In a sharply-worded rebuke following a three-year investigation, the Department of Justice said in a letter that the office headed by the larger-than-life sheriff of Maricopa County, Arizona (Phoenix) showed “a pervasive culture of discriminatory bias against Latinos” that included “the highest levels of the agency.” The letter also noted that, earlier in its investigation, Arpaio had refused to cooperate and forced the DOJ to sue him, obliging Arpaio and his deputies to cooperate.

The 22-page letter, signed by Thomas E. Perez, the assistant attorney general for civil rights, is addressed to the Maricopa County Attorney. If Arpaio and his office refused to enter into a court-approved settlement agreement, the government would file a lawsuit to compel compliance.

The letter is also seen as the opening salvo of a legal war against Arpaio and his methods. The DOJ is currently conducting a separate federal grand jury investigation into allegations of abuse of power by the department’s public corruption department and for denying the civil rights of those they apprehend or imprison.

Adding yet more weight to the DOJ letter, Arpaio – who has been reelected to his post four times – is up for reelection in 2014. Some observers believe that the growth of the County’s Latino population, and its increasing political sophistication, could spell trouble for the 79-year-old lawman.

The DOJ said the allegations its letter were based on interviewing more than 400 inmates, deputies and others, including Arpaio and his senior deputies, visiting the jail, and reading internal documents numbering into the thousands of pages.

The investigation concluded that Latinos in Maricopa County were receiving “second-class policing services” and that a “culture of bias” exists in Arpaio’s office. At a news briefing, the DOJ spokesman said, “We have to do cultural change and culture change starts with people at the top.”

In a related development, the Secretary of Homeland Security, Janet Napolitano – a former governor of Arizona — announced that, as a result of the DOJ’s findings, the federal government would no longer allow Arpaio’s deputies to use the DHS database to check the immigration status of inmates in their custody.

Arpaio’s office has participated in several DHS programs, including one known as 287(g), which empowers local law enforcement officers to enforce Federal immigration law. That program has been widely criticized on a number of grounds, including the local police or sheriff’s lack of experience enforcing complex immigration law. Because of the DOJ investigation, his participation in this program was terminated by the DHS.

The DHS also limited the sheriff’s office’s access to the database it uses for another of its more controversial programs, known as Secure Communities. This program allows local law enforcement agencies to check the immigration status of people it has in custody and to notify the Immigration and Customs Enforcement agency (ICE), which handles deportation proceedings. The program was designed to identify serious criminals in the US illegally and has been heavily criticized for identifying for deportation people arrested for committing minor crimes, such as speeding or driving with a broken taillight.

The DHS said in a statement, “The Department of Homeland Security (DHS) is troubled by the Department of Justice’s (DOJ) findings of discriminatory policing practices within the Maricopa County Sheriff’s Office (MCSO). Discrimination undermines law enforcement and erodes the public trust. DHS will not be a party to such practices. Accordingly, and effective immediately, DHS is terminating MCSO’s 287(g) jail model agreement and is restricting the Maricopa County Sheriff’s Office access to the Secure Communities program.

“This is a sad day for America as a whole,” Sheriff Arpaio told The New York Times. “We are proud of the work we have done to fight illegal immigration,” he said, adding that he is merely following the law.

But the DOJ investigation found mountains of evidence that the sheriff’s office were practicing the most egregious forms of racial profiling in targeting Latinos.

Their letter said “The absence of clear policies and procedures to ensure effective and constitutional policing, along with the deviations from widely accepted policing and correctional practices, and the failure to implement meaningful oversight and accountability structures, have contributed to a chronic culture of disregard for basic legal and constitutional obligations.”

The DOJ said that a substantial percentage of the incident reports filed after traffic-related stops suggest that these stops may have violated the Fourth Amendment’s prohibition on unreasonable seizures.

The report also noted that Sheriff Arpaio had conducted numerous raids targeting illegal immigrants. These raids were highly publicized and were sometimes prompted by complaints simply referred to people with “dark skin” or to Spanish speakers congregating in an area.

“The use of these types of bias-infected indicators as a basis for conducting enforcement activity contributes to the high number of stops and detentions lacking in legal justification,” the report said.

Sheriff Arpaio has become the darling of Republican candidates for the presidency. He has had visits from Gov. Rick Perry of Texas, Rep. Michele Bachmann, former Gov. Mitt Romney of Massachusetts, and Herman Cain, who has since dropped out of the race. Arpaio has endorsed Governor Perry.

Arpaio has won reelection four times by hefty margins. But in recent months, his popularity appears to have somewhat declined due to allegations that his department misappropriated county funds and failed to adequately investigate more than 400 sexual-abuse cases, where many of the complainants were illegal immigrants.

Last year, the American Civil Liberties Union (ACLU) and the ACLU of Arizona filed a lawsuit challenging the illegal arrest and detention of a U.S. citizen and a legal resident by Maricopa County Sheriff’s Office (MCSO) deputies. It is described below as fairly typical of the tactics used by Arpaio’s officers. It was written by the lawyers for two men who were driving down a public roadway when they were stopped and arrested without justification, and transported to the site of an immigration raid.

The lawsuit was filed in U.S. District Court for the District of Arizona on behalf of Julian Mora, a legal permanent resident who has lived in the U.S. for 30 years, and his son Julio Mora, a US citizen, against Maricopa County Sheriff Joe Arpaio and Maricopa County. The lawsuit charges that the MCSO deputies racially profiled the father and son as they drove their pickup truck on a busy public road and illegally arrested and detained them, violating the US Constitution’s guarantee of equal protection under the law and prohibition on unreasonable seizures.

Julian Mora was driving to work when, without provocation, an MCSO vehicle cut in front of him forcing him to stop abruptly. MCSO deputies then ordered the father and son out of their vehicle, then frisked and handcuffed them. Although the deputies had no reason to believe that the Moras had broken any law or were in the country unlawfully, they transported the Moras to Handyman Maintenance, Inc. (HMI), where MCSO was conducting a raid that morning. For the next three hours, the Moras were held in handcuffs at HMI, where they were denied food and water and forbidden contact with the outside world. They were not released until they were interrogated.

The ordeal was particularly humiliating for 66-year-old Julian Mora who, due to his diabetic condition, has difficulty controlling his bladder and had an urgent need to use the bathroom. MCSO personnel, however, rejected his repeated requests. Eventually, deputies escorted him outside where he was made to urinate in the parking lot. MCSO personnel later mocked his son Julio when he had to use the bathroom, because he had difficulty going with his hands still cuffed.

“To this day, I don’t know why the officers stopped us out of all the cars on the road,” said 19-year-old Julio Mora. “We were treated like criminals and never told why. I was very scared. I never thought something like this would happen to me. Now I know it can happen to anyone, citizens too. I don’t think it’s fair.”

The federal lawsuit was settled when Arpaio’s lawyer agreed to a $200,000 payout to the Moras.

There are more than a thousand other lawsuits pending against Arpaio and his office. Many of these types of suits have been settled out of court, limiting the availability of details. But the cost of the settlements to the County are substantial.

The DOJ investigation has focused on the Sheriff’s office (MCSO’s) compliance with the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141″), and Title VI of the Civil Rights Act of 1964,42 U.S.C. §§ 2000d to 2000d-7 and its implementing regulations at 28 C.F.R. § 42.101 et seq. (“Title VI”). Section 14141 prohibits law enforcement agencies, such as MCSO, from engaging in activities that amount to a pattern or practice of violating the Constitution or laws of the United States.

Title VI and its implementing regulations provide that recipients of federal financial assistance, such as MCSO, may not discriminate on the basis of race, color, or national origin. These laws give the United States the authority to file legal action and obtain the necessary relief to ensure compliance with the Constitution and laws of the United States.

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.

Courtesy Palgrave/Macmillan

This story was written by Jason Leopold and originally published on Truthout.

The photograph on the cover of Andrew Kolin’s book is all too familiar.

Police officers dressed in riot gear, gripping batons, square off against protesters in what appears to be a tense situation that is on the brink of turning violent. Although the photograph was shot during a protest on the streets of Pittsburgh 2009, it’s an image that is now seared into the public’s consciousness following the brutal crackdowns by local law enforcement on the Occupy movement in Oakland and New York City last month.

Important questions have been raised about what role, if any, the federal government has played in dismantling the Occupy encampments around the country and what the protesters and civil liberties groups say is ultimately an attempt to stifle dissent.

While we wait for those answers, Kolin, a political science professor at Hilbert College in Buffalo, New York, has done a masterful job of tracing the origins of the “political repression of mass-based movements” and the rise of the “police state” in his exhaustively researched book, “State Power and Democracy: Before and During The Presidency of George W. Bush.” (Click here to read an excerpt.)

In an interview with Truthout, Kolin said, all police states, “and Germany in the [1930s] is the classic example,” develop by “crushing democracy.”

The goal of a police state, Kolin said, is to “modernize state functions and concentrate control over society through the creation of specialized departments.”

It was Watergate, Kolin said, that became a “dress rehearsal” for the police state under which US citizens currently live.

“There was cause for optimism with the Church Committee hearings exposing the criminality of the Nixon administration,” Kolin said. “But again, as I discuss in my book, the reform that came out of the Church Committee that actually made a police state more possible was the creation of the secret [Foreign Intelligence Surveillance] court, which for the first time, made government surveillance legal. Then, president after president sought to reassert their power post-Watergate in domestic and foreign policy.”

In the introduction to “State Power,” Kolin explains how the national security policies implemented by Bush and embraced by Obama, such as the Patriot Act, which authorized the warrantless wiretapping of US citizens, were the culmination of extraordinary tension between state power and democracy dating back to the founding of the Republic.

The expansion of state power over the course of US history came at the expense of democracy. As state power grew, there developed a disconnect between the theory and practice of democracy in the United States. Ever-greater state power meant it became more and more absolute. This resulted in a government that directed its energies and resources toward silencing those who dared question the state’s authority. Such questioning of state power had emanated as a response to mass-based political movements striving to further democracy with an increase in freedom, especially for the downtrodden. This put mass movements in direct confrontation with the elite politics of policy makers. So, over time, as the US government continued on its course of seeking to increase state power by extending ever-greater control over people and territory, it also meant it worked toward a goal to diminish mass-based political movements.

This is an important history lesson, especially for the generation who became politically aware during Bush’s presidency and view the crackdown on the Occupy protests as somewhat unprecedented.

Kolin argues that the roots of such “political repression” can be traced back to the end of the Revolutionary War, beginning with “the conquest of North America and by the start of the twentieth century,” when the US government began to implement policies “intended to eliminate democracy inside and outside the United States.”

“It is no coincidence that as the state enacted measures to crush democracy, there appeared federal agencies with an antidemocractic mission…,” Kolin writes. “Nonetheless, political repression ebbed and flowed, often determined by historical factors and the ability of progressive movements to affect social change during periods of unrest.”

Kolin said the leaderless Occupy movement, like political uprisings in the US that preceded it, has a simple goal: “the excluded seeking to be included, which is the one thing standing in the way of mass democracy.”

“It’s eerily disturbing how history is once again repeating itself,” Kolin said, as he watches law enforcement, which he noted is beginning to look increasingly “like a civilian branch of the military,” and local government officials are “trampling upon the rights of citizens and doing so in ways that are becoming more violent,” in order to “repress dissent.”

A report published earlier this week by Business Insider may help explain why local police forces are beginning to appear more and more militarized.

Credit a “little-known endeavor called the ‘1033 Program‘ that gave more than $500 million of military gear to U.S. police forces in 2011 alone,” Business Insider reported.

1033 was passed by Congress in 1997 to help law-enforcement fight terrorism and drugs, but despite a 40-year low in violent crime, police are snapping up hardware like never before. While this year’s staggering take topped the charts, next year’s orders are up 400 percent over the same period.

This upswing coincides with an increasingly military-like style of law enforcement most recently seen in the Occupy Wall Street crackdowns.

One member of Congress, however, is speaking up about police tactics used against protesters. On Tuesday, Rep. Jerrold Nadler (D-New York), the ranking member on the House Judiciary Subcommittee on the Constitution, sent a letter to Attorney General Eric Holder urging him to launch a full-scale investigation “into law enforcement activities surrounding the Occupy Wall Street protests and similar events in other cities, to determine whether the unlawful use of force, or the unlawful targeting of individuals [via surveillance] based on their participation in constitutionally protected activities, occurred.”

Still, Kolin is highly critical of the Obama administration for remaining completely silent as disturbing images of peaceful protesters, such as the University of California, Davis, students who were pepper sprayed by campus police as they sat with their arms linked, flashed across television screens and went viral on the Internet.

“We don’t want a government that is representative of the one percent,” Kolin said. “But the silence by this administration speaks volumes and indicates, to me, that this is a movement the government wants to crush.”

However, “in spite of political repression on the federal, state, and local levels, for much of the twentieth century,” Kolin writes in “State Power,” “many mass-based movements persisted for two reasons: one, they appealed to many Americans, and two, as political repression was mounted against these movements, eventually the government believed that the political crisis that triggered such movements had ended.”

Kolin admits that he had believed Obama would eventually “correct the self-destruction of the Bush police state through piecemeal reforms” after he was sworn into office nearly three year ago.

Instead, Obama’s executive power grab went further. To cite one example, the president authorized the targeted assassination of a US citizen living in Yemen, Anwar al-Awlaki, who was suspected of inspiring failed terrorist attacks against the US and being a top member of al-Qaeda in the Arabian Peninsula. Awlaki, despite his US citizenship, was not entitled to due process under the Constitution, the administration concluded.

Kolin said Awlaki’s assassination underscores one of the problems with a two-party system: Democrats and Republicans “fall in line when it comes down to certain issues.”

“Democrats march in lockstep with their Republican counterparts,” Kolin said. “We saw that during the Bush administration and we’re seeing it again when it comes to economic and national security issues under Obama. I don’t see much difference between the two parties. I really don’t. Obama has proven to be just like his predecessors. He’s interested in the powers he inherited from Bush and the new powers he acquired. And he continues to fulfill the wishes of Wall Street and the financial backers who bankrolled his election.”

Kolin said the struggle for economic democracy will form the basis of his future research.

“One cannot have political democracy in the absence of economic democracy,” he said. “By that, I mean that without worker control of the workplace, political decisions will continue to be made by the economic elite.”

In the meantime, he believes the erosion of the police state, where “mass based democracy, which rules for the masses, not political and economic elites,” is still a possiblity and he sees the Occupy movement playing a crucial role.

“Keep in mind that police states are by their inherent nature dysfunctional,” Kolin said. “The Occupy movement is hope of a return to mass democracy as a countervailing force to the police state and to it’s possible breakdown.”

In a new report, “‘This is where I’m going to be when I die’: Children facing life imprisonment without the possibility of release in the United States,” Amnesty charges that children as young as 11 at the time of the crime have faced life imprisonment without parole in the United States – the only country in the world to impose this sentence on children.

The report says, “Sentencing children to die in prison flouts a principle of international human rights law recognized and respected across the world, except by the USA. No other country is currently known to impose life imprisonment” without the possibility of parole for crimes, however serious, committed when they were children.

“In the United States, people under 18 cannot vote, buy alcohol or lottery tickets or consent to most forms of medical treatment, but they can be sentenced to die in prison for their actions. This needs to change,” says Natacha Mension, U. S. campaigner at Amnesty International (AI).

In the United States, life without parole can be imposed on juvenile offenders as a mandatory punishment – without consideration of mitigating factors such as history of abuse or trauma, degree of involvement in the crime, mental health status, or amenability to rehabilitation.

“We are not excusing crimes committed by children or minimizing their consequences, but the simple reality is that these sentences ignore the special potential for rehabilitation and change that young offenders have,” said Mension.

In May 2010, the U.S. Supreme Court said life without parole is “an especially harsh punishment for a juvenile,” as the young offender will serve, on average, more years and a greater percentage of his life in prison than an older offender. “A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only,” the Court said.

Eighteen months after prohibiting this sentence for non-homicide crimes committed by under-18-year-olds, on November 8, 2011, the Supreme Court agreed to consider this issue in relation to crimes involving murder. It will not issue a decision until the second quarter of 2012 at the earliest.

The U.N. Convention on the Rights of the Child, which entered into force more than two decades ago, expressly prohibits the imposition of life imprisonment without the possibility of release for offenses, however serious, committed by people under 18 years old. All countries except the United States and Somalia have ratified the Convention.

“It is long past time for the United States to ratify the Convention without reservations or other limiting conditions and to fully implement its prohibition on the use of life imprisonment without release against children, including in relation to the cases of those already sentenced,” said Mension.

But the International Covenant on Civil and Political Rights (ICCPR), which the USA did ratify in 1992, acknowledges the need for special treatment of children in the criminal justice system and emphasizes the importance of procedures that take account of their age and facilitate their rehabilitation

The report says this international prohibition “does not stem from any inclination to excuse crimes committed by children or to minimize the consequences of such crimes for the victims and their families. It stems, rather, from recognition that children, who are still developing, are not fully mature, and hence not fully responsible for their actions.”

These “offenders have a special potential for rehabilitation and change. It is not that young people should not be held accountable for their actions. It is that this accountability must be achieved in ways that reflect the offender’s young age and his or her is utterly incompatible with basic principles of juvenile justice.”

Amnesty International’s 34-page report  illustrates the issue through the stories of Christi Cheramie, Jacqueline Montanez and David Young.

On November 30, Christi Cheramie, who is serving life without parole in Louisiana, will submit an application for executive clemency with the state Board of Pardons. Christi was sentenced to life in prison without the possibility of release in 1994, when she was 16 years old for the killing of her 18-year-old fiancé’s great aunt.

She pleaded guilty just before her trial in adult court began, fearing she could be sentenced to death if the trial went ahead. Her guilty plea prevents her from directly appealing her conviction or sentence.

A psychiatrist who saw Christi prior to her trial said that she was a “depressed, dependent, and insecure” 16-year-old who “seems to have been fearful of crossing” her fiancé, who she maintains committed the crime. Christi’s childhood was marked by sexual abuse. At the age of 13, she was hospitalized in a psychiatric clinic after trying to commit suicide on at least two occasions.

After spending half of her life in prison, Christi believes she has changed in many ways. She has obtained a high school equivalency diploma, a degree in agricultural studies, and teaches a number of classes at the prison. A warden has stated that she is “worthy of a second chance.”

A clemency campaign is also pending for a second person whose case is profiled in AI’s report. Jacqueline Montanez is the only woman in Illinois serving a sentence of life imprisonment without the possibility of parole for a crime committed as a child. A victim of child abuse, Jacqueline began abusing drugs and alcohol at the age of nine. Jacqueline’s abuser was her step-father, a gang leader, who also involved her in the drug trade as a very young child and groomed her to be his “little soldier.” After running away from home and joining a rival gang, she and two older women shot and killed two adult male members of her step-father’s gang.

Because she was 15 at the time of the crime and charged with first degree murder, she was automatically tried in adult criminal court. This denied the court system the opportunity of conducting a transfer hearing to determine whether her case ought to have been tried in juvenile court where factors such as her young age, home environment or amenability to rehabilitation would have been considered. Jacqueline was also automatically sentenced to life without parole due to her conviction; the sentencing court had no discretion to consider her history, her age, the circumstances of the offense or her potential for rehabilitation.

Now 35 years old, she expresses deep remorse for her actions and believes that she has grown into a very different person. She has obtained a high school equivalency diploma and has become a certified trainer of service dogs for disabled people. She grieves for her victims and the pain that their families have suffered.

In Illinois, 80 percent of children in prison for life without parole received mandatory sentences; about 82 percent are prisoners of color. That number is even higher in Cook County, where the Montanez case originated. These findings were published by the Illinois Coalition on the Fair Sentencing of Children in its 2008 report, “Categorically Less Culpable, Children Sentenced to Life Without Parole in Illinois.”

Jacqueline’s petition for executive clemency will be submitted to the Illinois governor and the Prisoner Review Board in January 2012.

David Young is one of two teenagers arrested and charged for the murder of Charles Welch in 1997. He was automatically charged in adult criminal court as required by North Carolina law for any criminal offense committed by anyone age 16 or older. Young’s co-defendant, who shot the victim, pleaded guilty to second-degree murder and was sentenced to 19 to 23 years in prison. David was convicted of first-degree felony murder and was sentenced to life without parole.

Young grew up in a hostile community environment where his parents abused drugs and his stepfather physically abused him and his mother. Now 32 years old, Young obtained his high school equivalency diploma and is in solitary confinement after being stabbed by two prisoners.

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.

Occupy Wall Street by Lalo Alcaraz

This report was written by Jason Leopold and originally published on Truthout.

The Department of Homeland Security says it is processing a separate FOIA request Truthout files with the agency in October for documents pertaining to Occupy Wall Street.

Michael Morton with his sister, Vicky Warlick, and mother, Patricia Morton, moments after he was released.

The courts and the American prison system regularly fail defendants by convicting innocent people and locking them up, sometimes sentencing them to execution for crimes they did not commit.

Many legal experts felt this to be the case when Troy Davis, who was executed last week after failing to be granted a hearing by any county, state or federal official,

Doubtless Troy’s execution was a cause of deep consternation in the offices of The Innocence Project, which is dedicated to seeking the exoneration of convicted inmates by presenting DNA evidence to establish their innocence.

The Innocence Project is associated with the Cardozo School of Law in New York. Law students there do much of the brain-destroying grunt work of looking back through files that may be a generation old. They are assisted by a small tram of staff lawyers and the services of law firms that offer their services free of change. The Innocence Project is now a nationwide phenomenon. It has been responsible for freeing more than 200 prisoners.

By definition, the nature of the work it does triggers big highs and big lows – not all prisoners represented by the Innocence Project win their freedom or a shorter sentence.

But last week, there was ample cause for joy at the Project. Two falsely-convicted prisoners were released from prisons in Louisiana and Texas. At one level, their stories are familiar and conventional. But at a deeper level, what was done to these people is nothing less than outrageous.

Michael Morton, 50, walked out of a Williamson County, Texas, courtroom after his 1987 murder conviction was overturned because of new evidence. And a New Orleans man, Henry James, wrongly incarcerated for 30 years, was exonerated of rape because new DNA evidence proves he didn’t commit. James served more time than any other person in Louisiana cleared by DNA, according to The Innocence Project, which played key roles in securing freedom for both men.

Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.

“Mr. Morton was the victim of serious prosecutorial misconduct that caused him to lose 25 years of his life and completely ripped apart his family. Perhaps even more tragically, we now know that another murder might have been prevented if law enforcement had continued its investigation rather than building a false case against Mr. Morton,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

“This tragic miscarriage of justice must be fully investigated and steps must be taken to hold police and prosecutors accountable.”

In August, the Innocence Project announced that DNA testing on a bandana found near the Morton’s home where the murder occurred contained the blood of the victim, Christine Morton, and a male other than Morton. According to the papers filed by the Innocence Project yesterday, new DNA testing has connected the male DNA on the bandana to a hair that was found at the crime scene of a Travis County murder that was conducted with a similar modus operandi after Morton was incarcerated. Morton always maintained that the murder was committed by a third-party intruder.

In the filing, the Innocence Project charges that Morton would never have been convicted of the crime if the prosecution had turned over as required evidence pointing to his innocence. Newly discovered exculpatory evidence uncovered through a Public Records Act request was not given to the defense.

“The prosecution’s complete disregard for the truth in this case is stunning,” said Nina Morrison, a Senior Staff Attorney with the Innocence Project. “Rather than try to get to the bottom of what really happened, the prosecution went to great lengths to keep evidence pointing to Mr. Morton’s innocence from his lawyers, blatantly ignoring direct orders from the judge who conducted a review of the evidence. This case and the other tragic murder that might have been prevented if the leads had been investigated will hopefully spur the Legislature to enact legislation requiring open file discovery in every case.”

All of the newly discovered evidence supports Morton’s insistence that the crime was committed by a third-party intruder who committed the murder for money. Had these leads been investigated, the police may have been able to capture the real perpetrator who it appears went on to commit at least one similar murder in Travis County.

During the trial, defense attorneys suspected something was amiss when they learned that prosecutors did not intend to call Sgt. Wood to testify and specifically raised with the court the possibility that information about Morton’s innocence may not have been turned over. The court ordered a review of all the police reports prepared by Sgt. Wood, and the prosecutor made assurances to the court that he would confer with Sgt. Wood to make sure that all documents were turned over for review.

On August 26, 2011, the sealed file containing the documents that were given to the trial judge was opened and reviewed by the present court and parties. The exculpatory documents that the Innocence Project received through the Open Records Act were not included in the file reviewed by the trial judge.

Morton has always maintained his innocence of the murder of his wife, Christine, who was found dead in their home by a neighbor the morning of August 13, 1986. At trial, the prosecution argued that Morton beat his wife to death after she refused to have sex with him upon returning from his 32nd birthday celebration at a restaurant. There were no witnesses or physical evidence linking Morton to the crime. The prosecution relied largely on the fact that Morton left a note to Christine on the bathroom vanity expressing his disappointment with the fact that she fell asleep on him. (The note closed with the words “I love you.”)

Morton’s co-workers testified that he arrived at work at about 6 a.m. that morning and didn’t notice anything unusual about his behavior.

The second exoneration is arguably even more unusual. With the consent of Jefferson Parish District Attorney Paul Connick, Jr., a judge has vacated the rape conviction and dismissed the charges against Henry James, 45, as a result of DNA testing on crime scene evidence proving his innocence. James, who has been incarcerated one month shy of 30 years, served longer than any other person in Louisiana who was later cleared through DNA testing. He was released from Angola prison last week.

“The fact that Mr. James is a free man today is thanks largely to the miraculous discovery of the evidence by Milton Dureau from the Jefferson Parish Crime Laboratory and the Sheriff’s Office’s quick response and review of the case,” said Vanessa Potkin, a Senior Staff Attorney with the Innocence Project.

She added, “Far too often searches for DNA evidence in old cases come up empty handed, which is why the federal government set up the Bloodsworth grant program to help police labs catalogue evidence. New Orleans Parish has already taken advantage of this program, but as this case so clearly demonstrates, jurisdictions everywhere must do a better job of cataloguing evidence to help correct injustice.”

Henry James lived adjacent to the victim and spent most of the day before the crime helping the victim’s husband repair his car. The victim was aware that James lived nearby and had seen him three or four times before. Later that day, the victim’s husband drove with James to Westwego, where they got into a car accident and the victim’s husband was arrested. At approximately 8 PM that evening, James went to the victim’s home to tell her that her husband had been arrested. At approximately 6 AM on November 23, 1981, the victim was awoken by someone entering her home through the back door. The man entered her bedroom and raped her at knifepoint. The police were at the scene almost immediately after the rape and the victim told the police that she didn’t know her assailant but gave a brief description of her attacker.

The next day, a police officer patrolling the neighborhood spotted James, who roughly fit the description, and informed the detective working on the case. The victim eventually picked James’ photo out of a book containing approximately 75 to 80 photos of black males. The record contains no indication that the victim told the police that she had previously met her attacker, much less that he had spent the previous day with her husband. James was arrested on November 25, 1981, and was placed in a line up where the victim identified him again. At trial, the prosecution relied on the testimony of the victim who identified James again in court, the detective and a physician who only testified that the victim had had intercourse within a few hours of his examination. The jury did not hear that serology testing from the rape kit excluded James as the perpetrator. (The seminal fluid and sperm recovered indicated that the attacker was a nonsecretor. James is a secretor.)

James testified on his own behalf. He maintained his innocence of the crime and said that he was asleep that morning until his stepfather woke him and then went to work. Three alibi witnesses backed up his testimony. His stepfather confirmed that he had been asleep at the time of the crime. (James’ mother had passed away, and he lived with his stepfather. James slept in the same bed as his stepfather.) Another witness testified that he saw the defendant walking to work and gave him a ride the rest of the way, and his boss testified that he arrived at work at 6:48 AM. However, James’ lawyer failed to inform the jury about the serological testing that excluded James as a suspect. The jury convicted James of aggravated rape, and he was sentenced on May 7, 1982 to life without parole.

After exhausting his appeals, James reached out to the Innocence Project, which sought to do DNA testing of the evidence recovered in the rape kit. Although officials at the Jefferson Parish Crime Laboratory were cooperative, the initial search for the evidence proved fruitless. The legal team eventually filed a motion on James’ behalf seeking testing on the evidence, but another search on February 18, 2010 also proved fruitless.

On May 3, 2010, Milton Dureau, who worked for the lab, was looking for evidence in a different case when he stumbled upon a slide from James’ case. Fortunately, he remembered the case number from his earlier search. The evidence was sent to a lab, which did STR DNA testing on the slide. The testing, which was completed on September 26, 2011, excluded James as the perpetrator in the rape.

“Misidentification has played a role in 75% of the DNA exoneration, and across racial identifications, as in this case, have proven especially unreliable,” said Thomas Golden, Partner at Willkie Farr & Gallagher LLP.

“In hind sight, it’s pretty obvious that the victim was influenced by her interactions with Mr. James the day before. The police may have also inadvertently influenced her misidentification. That’s why it’s especially important that the state enact identification reforms, especially those that require identification procedures be performed by an officer who doesn’t know the identity of the suspect,” he said.

Michael Morton was freed from prison earlier this month after serving 25 years in prison for a murder he didn’t commit. Since his release, legal wrangling has continued over an investigation into whether prosecutors committed misconduct at Morton’s original trial.

Richard Dieter, executive director of the Death Penalty Information Center, has developed a page to illustrate the geography of the death penalty--Executions by County. It shows the top 15 counties in the U.S. measured by the number of executions since 1976 that emanated from these counties. As revealed on the map, a small number of counties are responsible for a disproportionate number of executions. The information contrasts with the counties that have had the most murders, which is also provided.

Morton’s legal team – which includes the Innocence Project – objected to the terms of a motion filed last Thursday by prosecutors in the case. And now Texas Attorney General Greg Abbott will become involved in the investigation at the request of Williamson County District Attorney John Bradley.

“As the husband of the murder victim and someone who was wrongfully convicted of the crime, Mr. Morton has a deep personal interest in seeing justice done, so we will want to consult with the Attorney General as the new investigation proceeds,” Houston attorney John Raley (of Raley & Bowick LLP) said on behalf of Morton’s legal team. “We welcome Mr. Bradley’s pledge of cooperation with our investigation into the allegations that exculpatory evidence was hidden from Mr. Morton and the trial court, and trust there will be no more misunderstandings as to that process goes forward.”

New DNA testing of crime scene evidence provides powerful new proof that Williamson County resident Christine Morton was murdered by a third-party intruder, not her husband Michael. Michael Morton, who has served 25 years in prison for the crime, has always maintained his innocence and spent the last six years fighting for DNA testing over the District Attorney’s objections. The new tests have now identified a convicted offender in the national DNA databank as the man whose DNA is mixed with the blood and hair of the murder victim on a bloody bandana recovered near the crime scene.

In light of the new evidence, the Innocence Project filed legal documents asking the trial judge to appoint a new prosecutor in the case because District Attorney John Bradley’s bias against Michael Morton and the Innocence Project and past history on the case prevents Bradley from conducting an impartial review of the new DNA evidence and pursuing the actual assailant.

Barry Scheck charged, “It’s clear from the new DNA testing and other suppressed, exculpatory documents that law enforcement never followed up on numerous leads pointing to a third-party intruder, which might have solved the crime. But even more troubling, District Attorney Bradley knew about this evidence, yet kept these documents hidden in the State’s file while he fought tooth and nail to bar DNA testing.”

For more than six years, the Innocence Project had been seeking access to DNA testing on a stained bandana that was found on an abandoned construction site approximately 100 yards from the crime scene. Over the repeated objections of Bradley, the Texas Court of Appeals finally granted testing on the bandana last year. On June 20, 2011, the testing laboratory issued a report finding that the bandana contained the DNA of a man other than Michael, along with Christine’s blood and hair. The male DNA was put though the national DNA database and has been linked to a convicted offender.

“Michael had to spend the last six years fighting just to get access to DNA testing. Unfortunately, we now know that the District Attorney’s office knew all along that there was a good chance that the testing might point to another perpetrator in the case,” said John Raley, a Houston lawyer who has been pro bono co-counsel for Mr. Morton since 2003. “We’re hopeful the court will appoint a new prosecutor to investigate the matter because there is now a mountain of evidence pointing to Michael’s innocence, and the entire Morton family deserves to know the truth about what happened 25 years ago.”

In response to a Public Information Act request, the Innocence Project obtained the transcripts of the state’s chief investigator’s interview with the Christine’s mother that was conducted less than two weeks after the murder. In the transcript, she describes a conversation with the couple’s three-year-old son Eric, who told her in chilling detail that he witnessed an unknown man murder his mother.

The court papers note that this newly discovered evidence was turned over by the state Attorney General’s office in 2008 over the objection of Bradley, who personally reviewed the material and asked that it not be turned over because of the ongoing litigation over DNA testing.

The motion also charges that there was other newly disclosed information also pointing to a third-party intruder, including the fact that a neighbor told police that they “had on several occasions observed a male park a green van on the street behind (the Morton’s) address, then the subject would get out and walk into the wooded area off the road.” A handwritten telephone message to an investigator indicated that what appeared to be Christine’s missing Visa credit card was recovered from a store in San Antonio, but there was no indication that investigators ever pursued the individual who used the stolen card.

Given the fact that Bradley clearly knew that there was evidence of a third-party intruder, the motion argues that his repeated objections to testing of the bandana are further proof that he is incapable of objectively continuing in this case. He opposed the testing even though there was another unsolved murder in the county that bore a highly similar modus operandi.

The legal papers also note Bradley’s animosity towards the Innocence Project while serving as the Commissioner for the state Forensic Science Commission, which was asked by the Innocence Project to investigate whether the state was negligent in its prosecution and execution of Cameron Todd Willingham. The Commission ultimately found that the arson science used to convict Willingham of arson murder was outdated and without scientific basis. During his tenure as Chairman, Bradley, who was appointed by Governor Perry, repeatedly tried to derail the investigation and even referred to Willingham in the press as a “guilty monster” before the Commission had opportunity to hear from its own experts in the investigation.

Bradley, who was ultimately stripped of his chairmanship by the state Senate, was widely criticized by news outlets throughout the state because of concerns that he was incapable of being impartial. At numerous points during his tenure, he disparaged the work of the Innocence Project, specifically naming its Co-Director Scheck and state Senator Rodney Ellis, who also serves as the President of the Innocence Project Board of Directors.

The DPIC reports that recent polls conducted by Gallup and CNN indicate Americans’ support for the death penalty is continuing to decline.

According to Gallup’s 2011 poll, the percentage of Americans approving the death penalty as a punishment for murder dropped to its lowest level in 39 years. Only 61% supported capital punishment in theory, down from 64% last year and from 80% support in 1994. This is the lowest level of support since 1972, when the U.S. Supreme Court ruling in Furman v. Georgia voided death penalty statutes across the country.

Opposition to the death penalty (35%) in this recent poll reached a 39-year high. The Gallup poll also showed an increase from last year in those who believe the death penalty is applied too often or unfairly. Support for the death penalty dropped compared to last year among both Republicans and Democrats.

This year, among Democrats (or those leaning that way) more opposed the death penalty than supported it, a reverse from a year ago.

A recent CNN poll (conducted by ORC International) showed that when given a choice of sentences between life in prison without parole or the death penalty for the crime of murder, more Americans (50%) would opt for the life sentence than for death (48%). Seven years ago, the majority (56%) chose the death penalty over the life-without parole sentence. In CNN’s recent poll, the number of Americans who believe that at least one person in the past five years has been executed for a crime that he or she did not commit increased to 72%.

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.