Judith Armatta

Judith Armatta is a lawyer, journalist and human rights activist

Convicting the Innocent

Last week I attended the Oregon Innocence Project's annual fundraising event (given my limited income, I have no business contributing but I always do!). There was a full house -- lots of well-heeled lawyers. Stephen Wax, OIP legal director -- formerly federal public defender for 31 years, gave an update of their work. Here are some highlights.

In their three years of existence, they have received about 350 requests from prisoners to investigate their cases and have investigated 238 -- since the beginning of the OIP three years ago. The majority of the requests are from people convicted of sex offenses. Forty-six percent (46%) of these cases involved a child. The OIP has taken on four cases, two involve sex offenses, one is a murder with a death sentence, another is manslaughter. In two of the cases, the prosecutors have cooperated in securing DNA testing. In the capital murder case, the prosecutor refuses to cooperate, despite considerable evidence of innocence. (Steve didn't say who the prosecutors are.) Sixteen (16) people convicted in Oregon have been exonerated to date for a total of 65 lost years.

Two of the San Antonio Four (Anna and Cassandra) were special guests and talked about their ordeal and their eventual exoneration 20 years after being charged. The four Latina women had recently come out as gay. The seven and nine year old nieces of one were coerced by their father to make the allegations of gang rape. Homophobia contributed substantially to their prosecution and ultimate conviction. The women refused to plea bargain because they were innocent. Three were sentenced to 15 years, the girls' aunt received a 37 1/2 year sentence. While in prison, they refused sex offender treatment for the same reason, their innocence, and, as a result, spent time in solitary confinement. One woman had two small children, another was pregnant and had a 2-year-old, when they went to prison. The women served from 12 to 16 years in prison. Now, they are traveling throughout the U.S. to tell their story. They were exonerated in November 2016. Here's CNN's story: http://www.cnn.com/2016/11/24/us/san-antonio-four-exonerated/

Not included, but what the women told us last night:

1. The nieces' father made up the charge because their aunt refused to date him.

2. The father later married another woman who had two sons. They had a child together. After they divorced, the father coerced their daughter to accuse one of the sons of sexual abuse. He was found guilty and sent to prison at 17 and is now a registered sex offender for life. The father has not yet met his karma.

While Texas will compensate these four women for the lost years, Oregon has no compensation law for those wrongfully convicted. Nationwide, the Innocence Project reports 2,028 exonerations, for a total of 17,693 years lost. Forty-seven percent (47%) of these exonerees were black, 12% here Hispanic. Thirty-nine (39) percent were convicted of murder, 15% of sexual assault, 11% of child sexual abuse.http://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx

Oregon Innocence Project: www.oregoninnocence.org


“Those who do not remember the past are condemned to repeat it.” George Santayana.

I read a story in the New York Times today (January 17, 2017): “America or Mexico? An Agonizing Decision,” by Caitlin Dickerson. Rachel McCormick, born in the U.S., and Irvi Cruz, born in Mexico and immigrated illegally to the U.S., met in the U.S., married, and had two girls, Sarah, 4, and Anna, 2. Irvi is not a U.S. citizen and cannot apply for citizenship through his wife because he has traveled back and forth to Mexico several times. To apply now, he would have to leave the U.S. for 10 years.

With Trump threatening to deport 11 million illegal immigrants, Irvi and Rachel are faced with a fateful decision: do they remain in the U.S. waiting for the day Irvi is deported or do they pack up and go to Mexico, a strange land where Rachel and the girls will feel a perplexing and, at times, frightening displacement. As Ms. Dickerson wrote: “So the couple were boxed in by two bad options: take a chance on a new life in the small, struggling town in Mexico where Irvi grew up, or stay here and try to ignore the shaky ground beneath them.”

Nine million families of mixed parentage face this same dilemma. This dilemma is not new, though I knew nothing about its forerunner until I began reading The Train to Crystal City: FDR’s Secret Prisoner Exchange Program and America’s Only Family Internment Camp During World War II by Jan Jarboe Russell. In addition to forcing 120,000 people of Japanese ancestry living in the U.S. (62% were American citizens) into concentration camps during WWII, the US government arrested and imprisoned Japanese, German, and Italian noncitizen fathers who were on J. Edgar Hoover’s list of “dangerous enemy aliens,” begun in 1936 on orders from President Franklin Roosevelt. There were thousands of them. Their property was confiscated. Their families left destitute. No criminal charges were brought. They received no due process, no legal representation, no trial. The arrestees were not allowed to see the evidence or confront the witnesses against them (some were spiteful neighbors or coworkers). Nor could they appeal.

Immediately following the Japanese attack on Pearl Harbor, they were arrested and taken from their homes, families, work, and communities. These detainees were sent to a special camp at Crystal City, Texas where they could be reunited with their families who were U.S. citizens. The families had to choose whether to join their loved ones in a prison camp and give up their freedom, or remain separated for the unknown duration of the war and possibly forever. The main purpose of the camp was to gather people the U.S. could exchange for “important” U.S. POWs (diplomats, businessmen, doctors) held in Germany, Japan, and Italy. The program was informally known as “quiet passage.”

The U.S. wasn’t content with “enemy aliens” and their families living in the U.S. They needed more bodies for the one-to-one exchange demanded by Germany. Our government made agreements with 13 Latin American countries to deport Germans, Japanese, and Italians living within them to the U.S., where they would be imprisoned in the Crystal City camp until they could be exchanged. These Latin American immigrants had no ties to the U.S. It was a shocking case of overreach.

Families were faced with a choice: to join their noncitizen parent or husband to be included in what was euphemistically called “repatriation,” or to break up the family, possibly forever. If they joined him in repatriation, they would find themselves in countries they were unfamiliar with, countries at war, where people were starving and could not help, where they had nowhere to live, no means to earn a living. Some died of starvation and illness.

Ms. Russell interviewed a number of the children whose parents were forced to make this choice and tells their tragic stories in this excellent book. Quiet passage was a secret program. It provides a template and a warning. As Ms. Russell concludes: “[T]he issues in the book—the roundup of immigrants, prisoner exchange, the danger of scapegoating in a climate of fear, the trauma of war—are as real today as they were in 1942.”


• “The United States has more than twice the number of women in jails and prisons than are incarcerated in China, Russia, Brazil, or any other nation.” Equal Justice Initiative, August 26, 2016.

• Between 1980 and 2014, the number of incarcerated women increased by more than 700%. The Sentencing Project. • The imprisonment rate for women is increasing at a far greater rate than that for men. In Oregon, since 2007, the male population increased 2% while the female population increased 22%. Partnership for Safety and Justice (PSJ).

• Oregon’s female prison population soared after Ballot Measure 11 passed, necessitating the shift to a new prison in 2001 -- Coffee Creek Correctional Facility

• 70% of women in Oregon’s prisons were convicted of nonviolent property or drug crimes. PSJ.

• 85-90% of women in prison have a history of being victims of violence prior to their incarceration, including |domestic violence, sexual violence, and child abuse.

• Seventy percent (70%) suffer from a mental illness.

• A 2007 study of women entering Oregon prisons found that 91% had co-occurring substance abuse/dependence and mood disorders.

• For the lack of 20 beds, the Oregon Department of Corrections asked the Legislature for $10 million to open another prison for women.

In 1980, I joined a now-defunct organization, Prisoners’ Legal Services of Oregon, as a staff attorney. At the time, Oregon had three prisons: the ancient maximum security Oregon State Penitentiary (OSP), the medium security Oregon State Correctional Institution (OSCI), and the women’s prison, Oregon Women’s Correctional Center (OWCC).

Today, there are 14 prisons. OWCC was built to house 80 prisoners. Historical records show a discrepancy regarding the number actually held in the 1980s – anywhere between 57 and 200. The 2015 female population at Coffee Creek Correctional Facility, which replaced OWCC in 2001, was at least six times greater at 1,263. The number of black women in prison is three times that of white women; for Latinas it is twice as many.

In 2013, the Legislature passed HB 3194, the Justice Reinvestment Act. Its purpose is to shift money from prisons to less expensive programs that keep people out of prison, such as addiction treatment, mental health services, community corrections, and re-entry programs, and prevent the building of additional costly prisons. Yet recently, only three years later, the Department of Corrections asked the Legislative Emergency Board for $10 million to build another prison for women. After a public outcry, the DOC reconsidered, though the request may still come before the Oregon Legislature in December 2016.

The crux of the problem is Oregon prosecutors who hold the power to decide which crimes to charge and what a defendant will accept as a plea to avoid a trial and possibly longer sentence. According to human rights groups, prosecutors are over-charging, sending more women to prison for longer periods (using Oregon’s Measure 11 mandatory minimum sentencing law*). They impeded and lessened the impact of HB 3194, the 2013 reform. And, some at least, are continuing to undermine efforts to reduce or flatline Oregon’s prison population. This, when Texas has closed three prisons and diverted hundreds of millions of dollars to programs that keep people out of prison.

As Shannon Wight, deputy director at Partnership for Safety and Justice, wrote in a recent Street Roots article:

“For now, though, we must look to county prosecutors to avoid this unnecessary state expense. Due to mandatory sentencing laws in Oregon, prosecutors have almost absolute control over who goes to prison and for how long. Instead of spending millions to open a new prison for women, legislators should be asking prosecutors to find more appropriate ways to sanction and support women who would otherwise go to prison when other approaches to accountability are more effective.

“Opening a new prison will not lower the rates of non-violent crimes, nor will it reduce the number of people affected by such crimes. We know that the most effective approaches to crime involve accountability, treatment and services to help people chart new and successful paths. Helping our community means investing in such programs, not incarcerating more women for non-violent offenses.” (August 18, 2016)


*Measure 11 passed by Oregon citizens in 1994 (and subsequent amendments) established harsh mandatory minimum sentences for 21 crimes. Judges cannot vary from that minimum, often 75 months, though the Oregon Supreme Court held that judges may consider individual circumstances in rare cases. Youth 15 years or older charged with a Measure 11 crime are automatically remanded to adult court and faced with the same mandatory minimum sentences.