Tenth Circuit rejects bid by New Mexico court to withhold access

(CN) — In a consequential opinion on the eve of Thanksgiving, the Tenth Circuit ruled that the public right of access to new court complaints attaches at the time they are submitted. Wednesday’s 55-page opinion falls into a legal battlefield that stretches to every corner of the nation.

In addition to finding the right of access attaches upon submission, the opinion’s author, U.S. Circuit Judge Mary Briscoe, rejected another defense raised by New Mexico’s court administrators who said the federal court should abstain, which roughly translates as the state court administration saying to federal courts, stay out our business.

Critically, the Bill Clinton appointee also overturned a bright-line “five-hour rule” put in place by a federal trial court judge in Albuquerque, who said the clerks could withhold new complaints for five business hours which meant the majority could be held past the day they were submitted.

The Tenth Circuit, based in Denver, covers a wide swath of the West and Midwest including New Mexico, Colorado, Wyoming, Utah, Kansas and Oklahoma. On the panel for the case between Courthouse News and New Mexico’s administrative office were Judges Timothy Tymkovich, a George W. Bush appointee, and Barack Obama appointee Gregory Phillips in addition to Briscoe.

During oral argument this summer in front of that panel, Jon Fetterly with Bryan Cave argued for this news service that there is no need to withhold cases from the public in favor of clerical work because the public can see new cases at the same time that court clerks docket or “accept” them. The federal courts themselves give public access to new complaints when they are submitted and federal clerks do their work, at times correcting the submission, at that same time.

“Here, we conclude that the district court did not err in concluding that a First Amendment right to access civil complaints attaches when the complaint is filed (or submitted) to the court,” wrote Briscoe.

She pounded that point home by adding, “The New Mexico Courts have not cited to any case that supports the proposition that the right of access attaches at the point of acceptance, nor are we aware of any such case.”

The litigation was brought by Courthouse News against the administrator of New Mexico’s courts over their statewide “no-access-before-process” policy which held new complaints back until clerks finished reviewing the new filing and “accepting” them into a public docket. As a result, many of the new complaints — a regular source of news — were delayed until the next day.

“Reporting on complaints must be timely to be newsworthy and to allow for ample and meaningful public discussion regarding the functioning of our nation’s court systems,” wrote Briscoe, quoting from the Ninth Circuit opinion referred to as Planet III.

During a hearing in federal district court in Albuquerque, Courthouse News witnesses testified that the tradition of press and public access was very strong in New Mexico in the days of paper filing. Reporters saw new cases when they crossed the clerk’s intake counter.

Like many state courts when they converted to efiling, public access went backwards. The clerks held back the new efiled cases.

U.S. District Judge James Browning, sitting in Albuquerque, enjoined the administrators after that hearing. But he also set out a bright-line rule that gave them five hours to finish their clerical work. The case then took on an unusual procedural turn. New Mexico appealed on the issues of abstention and when the right of access attaches, while Courthouse News used one answering brief to both defend Browning’s rulings on the first two points but also attack the five-hour withholding window.

In Wednesday’s ruling on that appeal, Briscoe rejected New Mexico’s two main defenses: that the right of access attaches only after the clerks have done their administrative work; and that the federal courts should take a back seat to state courts in a constitutional challenge that affected state courts.

“Contrary to the New Mexico Courts’ assertions, their position that the right of access attaches to complaints only after clerks have completed their review is directly at odds with the principles underlying the First Amendment access right,” wrote Briscoe.

Representing Courthouse News, Katherine Keating with the Bryan Cave law firm said, “This opinion is the nail in the coffin for the notion that the First Amendment right of access does not attach until the court completes administrative processing.” 

Fetterly who argued the case before the Tenth Circuit, added, “It is also the latest circuit opinion to reject abstention as a defense to this important First Amendment right.”

Four circuits have now rejected the abstention defense, the Fourth, Eighth, Ninth and Tenth. In addition, district court judges within the Second, Fifth, Sixth and Eleventh circuits have also rejected the defense. The unanimity of those opinions leaves the Seventh Circuit isolated as the lone court to rule in favor of abstention.

Briscoe’s Tenth Circuit 55-page opinion cited to key rulings in favor of Courthouse around the nation, including last year’s ruling by Judge Christina Reiss in the U.S. District of Vermont who enjoined Vermont’s clerks after finding the work of the clerks was what was holding up access to new complaints, and that it need not. The clerks could do their administrative work after or at the same time that public access was granted.

The Tenth Circuit opinion drops into an active and vast field of legal battle with cases on the same basic issues pending in trial courts in Oregon, Idaho, Texas, Ohio, Missouri and Maryland, and on appeal in the New York-based Second Circuit.

from Courthouse News

Oklahoma executes man for 1993 killing of 3-year-old boy

McALESTER, Okla. (AP) — Oklahoma executed a man Thursday for the torture slaying of his girlfriend’s 3-year-old son in 1993, the third of four scheduled executions in the U.S. over a two-day stretch.

With Richard Fairchild’s execution, the state has now put to death seven people since it resumed carrying out executions in October 2021. In that time, Oklahoma has carried out more executions than neighboring Texas, which since 1976 has executed far more people than any other state.

More than half of the 40 people currently on Oklahoma’s death row have execution dates set over the next two years after the state Court of Criminal Appeals issued a moratorium in 2015 following a botched execution and two drug mix-ups in the death chamber.

Fairchild’s execution was the 16th in the U.S. this year — including one in Texas and one in Arizona on Wednesday — up from last year’s three-decade low of 11. An execution was also scheduled for later Thursday in Alabama.

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After Thursday, three more executions are scheduled in the U.S. for the remainder of 2022 — one each in Missouri, Oklahoma and Idaho, according to the Death Penalty Information Center.

Fairchild, who turned 63 on Thursday, began receiving the first of a lethal three-drug combination at 10:10 a.m. at the Oklahoma State Penitentiary in McAlester. He was declared dead at 10:24 a.m.

Fairchild, an ex-Marine, was convicted of killing Adam Broomhall after the child wet the bed. Prosecutors say Fairchild held both sides of Adam’s body against a scorching furnace, then threw him into a table. The child never regained consciousness and died later that day.

Strapped to a gurney inside the death chamber, Fairchild thanked his attorneys and prison staff and apologized to Adam’s family.

“Today’s a day for Adam, justice for Adam,” Fairchild said.

“I’m at peace with God. Don’t grieve for me because I’m going home to meet my heavenly father.”

Michael Hurst, the slain child’s uncle, said the boy would have been 34.

“Our long journey for justice has finally arrived,” Hurst said, adding that he was surprised to hear Fairchild express remorse for killing his nephew. “He hadn’t said that in 30 years.”

Prosecutors from the Oklahoma attorney general’s office had described the boy’s killing as torture when they wrote to the state’s Pardon and Parole Board, which voted 4-1 last month against recommending clemency for Fairchild.

Attorneys for Fairchild argued that he was abused as a child, was mentally ill and was remorseful.

“As Richard Fairchild’s brain has deteriorated, he has descended into psychosis, a fact well-documented in his prison records,” Emma Rolls, one of Fairchild’s attorneys, said in a statement to the Pardon and Parole Board. “Yet despite having lost touch with reality, Richard remains remorseful for his crime and continues to have an unblemished prison record. There is no principled reason for Oklahoma to execute him.”

Fairchild’s attorneys filed last-minute appeals Wednesday with Oklahoma’s Court of Criminal Appeals and the U.S. Supreme Court, but both courts denied his requests Thursday.

Also Thursday, the Oklahoma Court of Criminal Appeals denied a request from death row inmate Richard Glossip for a hearing to determine whether a co-defendant sought to recant his testimony that Glossip hired him to kill motel owner Barry Van Treese. Glossip’s execution is scheduled for February.

Glossip’s attorneys allege evidence was withheld by prosecutors, including interviews with witnesses. The court rejected a similar request by Glossip earlier this month and on Thursday ruled that the matters are not eligible for review because they either were settled previously by courts, could have been presented in earlier appeals or were not raised within 60 days of their discovery.

The U.S. has seen waning support in recent years for the death penalty across all political parties. About 6 in 10 Americans favor the death penalty, according to the General Social Survey, a major trends survey conducted by NORC at the University of Chicago. While a majority continue to express support for the death penalty, the share has declined steadily since the 1990s, when nearly three-quarters were in favor.

__

By SEAN MURPHY Associated Press

Associated Press reporter Ken Miller in Oklahoma City contributed to this report.

from Courthouse News

FTX investors sue cryptocurrency executive and his celebrity endorsers after going bankrupt

MIAMI (CN) — An Oklahoma attorney filed a lawsuit Tuesday night against Sam Bankman-Fried, the CEO of one of the world’s largest cryptocurrency exchanges, along with multiple of his paid celebrity endorsers including Tom Brady and his model ex-wife Gisele Caroline Bündchen and Shaquille O’Neal.

30 year-old Bankman-Fried announced Friday that he was resigning from his company FTX and filing for bankruptcy after failing to raise cash to solve liquidity issues, leaving millions of investors angry and empty handed.

After the company’s sudden collapse over just a few days, the money in customer’s accounts is now frozen. 

The suit, filed in Florida by Edwin Garrison, accuses FTX of devising a fraudulent scheme to “take advantage of unsophisticated investors from across the country,” causing $11 billion in damages.

Garrison further seeks to hold several of the company’s famous athlete and entertainment endorsers accountable for convincing customers to purchase cryptocurrency through FTX. Some of the names mentioned in the suit include professional tennis player Naomi Osaka, Boston Red Sox star David Ortiz, the Golden State Warriors NBA team, which promoted the company around San Francisco’s Chase Center, as well as their star player Stephen Curry.

“The Deceptive FTX Platform maintained by the FTX Entities was truly a house of cards, a Ponzi scheme where the FTX Entities shuffled customer funds between their opaque affiliated entities, using new investor funds obtained through investments in the yield-bearing accounts and loans to pay interest to the old ones and to attempt to maintain the appearance of liquidity,” wrote Garrison.

The attorney claims that these FTX partners violated federal security laws by failing to perform any “due diligence” prior to their marketing of the company and by not disclosing the full amounts they were being paid in exchange for their promotions.

He points out that the U.S. Securities and Exchange Commission took action against boxing champ Floyd Mayweather and music producer Dj Khaled in 2018 for similar “touting violations” after they failed to disclose payments they received by cryptocurrency issuers to promote Initial Coin Offerings on Twitter.

The SEC also went after Kim Kardashian in October, forcing her to pay $1.26 million in penalties for touting on social media a crypto asset security from EthereumMax without disclosing how much they paid her.

One of the nation’s most well known lawyers, David Boies, whose represented Al Gore in the 2000 Supreme Court election dispute as well as some of the victims of Jeffrey Epstein, joined Wednesday to represent Garrison’s claims.

Just days before the seemingly stable crypto exchange plummeted, the CEO of rival crypto exchange Binance, sold about $530 million worth of an FTX-issued crypto token after discovering they “mishandled customer funds,” causing other large scale investors to withdraw $5 billion in funds.

Bankman-Fried sent out a tweet last week that said, “I’m sorry. That’s the biggest thing. I fucked up should have done better.”

The SEC as well as the Justice Department and Commodity Futures Trading Commission have launched investigations into FTX to see if the exchange properly safeguarded consumer deposits and relationships with trading affiliates.

On Wednesday, the House Financial Services Committee said they will be holding a hearing on the crash, where Bankman-Fried and other representatives from the company will testify before Congress.

Cryptocurrency surged in popularity during the pandemic with millions of new investors. But as inflation intensified the cost of living and federal interest rates hiked over 2022, many investors have pulled their deposits out of the increasingly volatile industry.

This has caused the value of bitcoin and other tokens to fall significantly to about $17,000 from last year’s $68,000.

Other key crypto institutions such as hedge fund Three Arrows Capital, lenders Voyager Digital and Celsius Network and stablecoin issuer Terra Luna, have all also quickly bottomed out over the past year

BlockFi, a New Jersey-based crypto lending platform that received a $250 million bailout from FTX in June, said in a statement last week that they are halting customer withdrawals, “given the lack of clarity on the status” of the platform.

from Courthouse News

Google reaches $392M settlement over location data

(CN) — Google joined attorneys general in 40 states on Monday in announcing the settlement of a lawsuit accusing the company of violating consumer protection laws by recording and sharing user location data without comprehensive disclosures or the ability to easily opt-out.

The tech giant will pay $391.5 million to settle the claims, as well as take measures to ensure information about the data is more transparent. 

The settlement agreement states that between 2014 and 2019, “Google misrepresented and omitted material information regarding the location history and web & app activity settings … [confusing] users about how location information would be captured, stored and used without users’ knowledge or consent.”

During that time, even if a user had turned off location history, Google continued to track their location through other account settings, other apps or device-level features, Wi-Fi and Bluetooth scans and IP addresses, among other methods, according to the agreement. The company is said to have learned about user movements through apps including Google Maps, Google Play and YouTube, even if the user was not signed into their account. 

Google did not admit to any wrongdoing as part of the settlement.

Under the agreement, Google will post pop-up notifications to users who have location history or web and app activity enabled at the time of the notification “disclosing whether these settings collect location information and instructing users how to disable each setting, delete the data collected by the settings, and set data retention limits.”

Along with other concessions, the company will maintain a dedicated web page with comprehensive details about its location data practices and user rights and controls, while it has also agreed to certain limitations on the use and retention of location data. For example, Google must refrain from providing a user’s precise location to third parties without express affirmative consent. Google will automatically delete most personally identifying location data between 30 and 180 days after it was collected and submit annual compliance reports for a period of four years. 

In a statement Monday, Louisiana Attorney General Jeff Landry called the agreement “the largest multistate attorney general privacy settlement in the history of the United States,” adding his state will receive $12.7 million.

“I have been ringing the alarm bell on Big Tech for years, and this is why,” Landry said. “Citizens must be able to make informed decisions about what information they release to Big Tech. Additionally, Big Tech must recognize the limitations in their collection efforts as it relates to various state laws.”

Landry credited a 2018 Associated Press article for the states’ investigation, adding that Google uses location data to financially benefit from targeted advertising sales. 

A statement from Google on Monday noted the company has provided its users more “choice and transparency” about location data in recent years, including the introduction of auto-delete controls, incognito mode and tools to show how location data is collected and shared. 

“Consistent with those improvements, we settled an investigation with 40 U.S. state attorneys general based on outdated product policies that we changed years ago,” the statement read. “As well as a financial settlement, we will be making updates in the coming months to provide even greater controls and transparency over location data. Today’s settlement is another step along the path of giving more meaningful choices and minimizing data collection while providing more helpful services.”

Other updates under development include clear and concise disclosures, simplified comprehensive location history deletion and more up-front information for new accounts. 

Arizona first sued Google over the location tracking in state court in 2020. It reached an $85 million settlement with the company last month, but that didn’t resolve claims that had since been filed by attorneys general in other states.

Louisiana was joined in Monday’s settlement by Alabama, Alaska, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia and Wisconsin.

from Courthouse News

‘Disinformation’ can be a crime, 1st Circuit rules

BOSTON (CN) — New Hampshire lawmakers did not run afoul of the Constitution in making it a crime to ridicule people with false statements, the First Circuit held Tuesday, but a concurring judge said it’s time for the Supreme Court to overrule its precedent in this area.

“The case could be a vehicle for the Supreme Court to revisit the doctrine of criminal defamation for the first time in more than 50 years,” said Jeffrey Hunt, a First Amendment expert at Parr Brown in Salt Lake City, Utah.

It was in 1964 that the Supreme Court held defamation can be a crime while looking at the prosecution of New Orleans District Attorney Jim Garrison for verbally attacking a number of judges. Garrison was famously portrayed by Kevin Costner in Oliver Stone’s 1991 film “JFK.”

In a concurring opinion Tuesday, however, U.S. Circuit Judge O. Rogeriee Thompson called it time to revisit that idea.

Such laws “cannot be reconciled with our democratic ideals of robust debate and uninhibited free speech,” Thompson opined.

“These laws have their genesis in undemocratic systems that criminalized any speech criticizing public officials,” she added. “It strikes me as out of touch with reality to suggest these laws are not being selectively harnessed or that these laws aren’t particularly susceptible to … abuse.”

The ruling comes less than three months after the Department of Homeland Security disbanded its Disinformation Governance Board, which had attempted unsuccessfully to federalize the policing of false statements.

Today’s case out the New Hampshire Supreme Court involves a comment posted online to a newspaper article. Robert Frese, 67, who lives in a trailer park in Exeter, accused the police officer described in the piece of being corrupt, and he said the officer’s daughter was a prostitute.

After he was arrested for the comment, state law said he wasn’t entitled to a jury trial or a court-appointed lawyer. Ultimately, however, the charges were dropped. Frese and the ACLU in turn brought a lawsuit to strike down the law proscribing false statements that expose someone to “public hatred, contempt or ridicule.”

On the First Amendment issue, the First Circuit said it was bound by the Supreme Court’s 1964 precedent. The 27-page ruling by U.S. Circuit Judge Jeffrey Howard also rejects the ACLU’s claim that the law was unconstitutionally vague.

The statute “provides adequate guidelines for law enforcement,” Howard wrote. “We doubt that reasonable persons will have much difficulty in ascertaining objectively whether a false statement exposes the victim to public hatred, contempt, or ridicule.”

Frese was also charged in 2012 and had to pay a $372 fine after he called someone’s life-coaching business a “scam” on Craigslist,. The police claimed there was no evidence that his statements were true, but the New Hampshire Department of Justice stepped in after the case generated local publicity. It said that, even if the statements were false, Frese shouldn’t be prosecuted if he believed they were true.

Criminal defamation laws developed as part of the “star chamber” proceedings against Henry VIII’s political enemies. In the U.S. they were originally seen as a less drastic alternative to dueling, but their popularity gradually waned due to the First Amendment and the availability of civil suits for libel.

Today 13 states still have such laws: Idaho, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia and Wisconsin. Another dozen or so states criminalize hate speech against minorities.

Michigan, Oklahoma and Virginia specifically prohibit questioning a woman’s chastity, although the fine for calling a woman a slut in Oklahoma is only $25.

In New Hampshire, police can decide whether to prosecute someone for defamation without a neutral magistrate being involved — which the ACLU claims creates a conflict of interest when a person is accused of disparaging the police.

A common criticism of criminal defamation laws is that they’re frequently used to silence political opposition, as they were in Henry VIII’s day. A study in a Texas law review found that nearly half of such prosecutions are “basically political,” and another study of 77 cases from 1965 to 2002 found 68.8% were about public figures and matters of public concern, with cops and politicians being the most frequent complainants.

“It’s hard to square the concept of seditious criminal libel embedded in the New Hampshire statue with our modern conception of the First Amendment and its robust protections for political speech,” Hunt said.

In one recent case in Georgia, a woman was arrested and put in jail after she griped on Facebook that her husband, a sheriff, wouldn’t go out and buy Tylenol for her child who had the flu. The case was thrown out because Georgia’s criminal defamation law had previously been repealed.

According to the ACLU, prosecutions for criminal defamation are on the increase as a result of social media, which makes it easier for police and others to know who is criticizing them — a development highlighted by Thompson in her concurrence.

“When, as has been the case in this country of late, the truth often seems up for grabs and objectively accurate facts are tossed aside in favor of alternative versions that suit a given narrative, drawing the line between truths and lies — and malicious lies at that — is exceptionally tricky,” wrote Thompson, an Obama appointee.

“There is no readily discernible boundary between what gossip or loose talk amounts to being criminal and that which does not. … And this is troubling because it underscores the simple truth that a criminal defamation law can be wielded, weaponized by a person who disagrees with whatever speech has been uttered.”

from Courthouse News

US jails rife with violence, abuse and overcrowding

(AP) — In California, lawyers accused staff at the Los Angeles County jail of chaining mentally ill detainees to chairs for days at a time. In West Virginia, people held in the Southern Regional Jail sued the state, saying they found urine and semen in their food. In Missouri, detainees in the St. Louis jail staged multiple uprisings last year, while in Texas, a guard at Houston’s overcrowded Harris County Jail said she and her coworkers had started carrying knives to work for fear that they wouldn’t have backup if violence broke out.

And while the infamous Rikers Island jail complex in New York City has been the focus of media coverage for its surging number of deaths, rural and urban lockups from Tennessee to Washington to Georgia are not faring much better.

In other words, America’s jails are a mess.

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“It’s hard to believe, but it seems jails are even more wretched than usual these last few months,” said David Fathi, director of the American Civil Liberties Union’s National Prison Project. “Having worked in this field for 30 years, I don’t remember any other time when there seem to be so many large jails in a state of complete meltdown.”

Several lockups denied claims about deteriorating conditions or did not respond to requests for comment. A few, including Rikers, acknowledged problems such as infrastructure issues, detainee deaths and high staff attrition.

“We are working hard to stem the rippling effect of years of mismanagement and neglect within our city’s jails,” a spokesperson for the New York City Department of Correction, which runs Rikers, said in a statement. “Turning our jails around requires a collaborative effort, transparency and time.”

Unlike prisons, most jails are funded and managed locally, so the problems they face can vary widely from one county to the next. While there’s crumbling infrastructure in Atlanta’s Fulton County Jail, there’s been murky brown drinking water in Seattle’s King County Jail and overcrowding in Houston because of a backlog in the court system.

But more than a dozen employees, detainees and experts who spoke with The Marshall Project and The Associated Press highlighted two problems they’ve seen at jails across the country: too many people incarcerated, and not enough guards.

“Our jail facilities are at capacity,” said David Cuevas, president of the Harris County Sheriff’s Office deputies’ union. “It is truly not safe.”

The twin issues of overcrowding and understaffing have plagued jails across the country for years, and even before the pandemic many facilities were in disarray. Yet in the months after Covid-19 hit, the number of people in local lockups plummeted. People stayed home and committed fewer crimes. Police did not make as many arrests. Courts reduced bail. And jails let more people go home early. Nationally, the number of people in jail decreased by about 25% by the summer of 2020, according to data compiled by the federal Bureau of Justice Statistics.

But as concern about the virus faded, so did many of the measures designed to combat it — and soon jail populations began to rise. By the summer of 2022, many lockups held more people than they had in years, or became so overcrowded that detainees were forced to sleep on floors, in underground tunnels or in common areas without toilets.

“Everyone is on edge because it is crowded,” one man detained in Los Angeles wrote in a sworn declaration filed as part of a lawsuit by the American Civil Liberties Union. “The place smells of urine and excrement because some toilets don’t work, and people who are chained to chairs sometimes pee on the floor because the deputies won’t unchain them.”

Celia Banos, whose son was one of the people chained to a bench for several days, told The Marshall Project that she was shocked to learn how little the jail had done to take care of him.

“His condition has deteriorated in there,” Banos said. Though her son — who has schizophrenia — has been incarcerated before, she said this time the jail seemed to be getting worse.

Some jails found that they still needed to use isolated cells to quarantine potentially sick prisoners. A jail official in Houston said that meant cells that once held two or three people might only be able to hold one, and detainees with a record of violence couldn’t be separated from the general population as easily.

But even as the number of detainees increased, the number of guards did not. Just like state prisons, many local lockupssaw a rise in officer vacancies — sometimes even at facilities that appeared fully staffed on paper. The City, a nonprofit news outlet in New York, reported last year that more than 1,000 Rikers Island guards were calling out sick every day due to a frequently abused policy allowing unlimited sick leave.

“The things that led to the Great Resignation were happening in jails, too: It was a depressing time, and lots of people were getting sick,” Vincent Schiraldi, a former New York City jail commissioner, said in an interview.

The guards’ union has disputed that members overuse sick leave, saying they are legitimately absent, often due to on-the-job injuries and exhaustion. In October, the jail said it still had as many as 800 employees out at a time.

With fewer officers, those who remain are often forced to work longer hours, including double, triple and even quadruple shifts. Guards in Cleveland said they didn’t have time to eat, while some jail workers in Houston reported urinating in bags when they couldn’t find someone to replace them at their posts.

Having fewer jail employees can also make life worse for detainees because there are fewer workers to let them out of their cells, take them to court, teach their educational programs or tend to their most basic needs.

In Houston, a man in one of the jail’s isolation units said violence sometimes broke out after guards didn’t let them out to shower for days at a time, while in Philadelphia — at a lockup with a 36% staff vacancy rate — incarcerated people said they couldn’t always get meals or toilet paper. (A jail spokesman “categorically denied” that allegation.) In Ohio, local media reported that guards at Cleveland’s Cuyahoga County Jail have taken to locking people in their cells 23 hours a day because there aren’t enough staff.

And in one extreme example, a man detained at the Oklahoma County jail in Oklahoma City is accused of raping a handcuffed woman after guards at the understaffed facility left them unsupervised during booking. A detention officer at the troubled facility, which the county took over from the sheriff two years ago, eventually intervened, and the man was later charged with first-degree rape. A jail official said that no disciplinary measures against staff have been announced, but the matter is still under investigation.

According to Andrea Armstrong, a law professor at Loyola University New Orleans who studies deaths in jails and prisons, staffing problems are particularly dangerous when it comes to medical care.

“We are seeing increased mortality in jails, and they are the types of deaths that could have been avoided if the person had better access to emergency care,” she said.

In February, a man at Rikers Island choked on an orange and died after staff failed to intervene in time. He was one of eighteen people who have died in the city’s jails this year. Two months later, a detainee at the jail in Anoka County, Minnesota, died in his cell after the guards could not find any medical staff on duty to save him. In Houston, the family of a man who caught Covid-19 and died alone in his cell last year sued the jail. According to the family’s lawyer, U.A. Lewis, none of the staff noticed the man was dead until officers came to get him for a visit.

Despite the consensus among experts that conditions are deteriorating in many lockups, there’s far less agreement on solutions. While jails officials said they needed basic infrastructure improvements and more staff, some prisoner advocates point out that more lenient bail policies could help ensure fewer people stay behind bars when they don’t have money to pay for their freedom.

In the meantime, researchers say they need better information from the jails to be able to measure the scope of the problem.

“There’s so little data out there,” said Michele Deitch, a law professor at the University of Texas at Austin who studies jails and prisons. “We literally do not have the means to assess the safety or dangerousness of a facility in any comparative way.”

Some of the starkest examples of poor conditions — like semen-tainted food or brown drinking water — aren’t easy to measure.

Even for those things that can be measured — like overcrowding, understaffing or an increase in jail deaths — the available numbers are often years delayed and unreliable. For example, the U.S. Department of Justice said that its annual in-custody death reports undercounted jail deaths by at least 39%. And although the federal government issues an annual report about the number of people in jails nationwide, the most recent data is more than two years old.

Experts said that lack of data makes it hard to say how much of the growing alarm now actually reflects a change in jail conditions and how much is the result of heightened interest from media and the public.

But they say that so far, that increased concern has not translated into better conditions.

“It is horrible in here,” another detainee in Los Angeles wrote in a sworn declaration. “In fact, it is worse than being homeless. Even when I sleep on the streets, there is some room to stretch out. But in here, there are so many people walking by you or sleeping next to you that I’d rather be on the streets.”

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By KERI BLAKINGER The Marshall Project/Associated Press

Blakinger and Rachel Dissell in Cleveland reported for The Marshall Project. Associated Press writers Ken Miller in Oklahoma City and Claudia Lauer in Philadelphia contributed to this report.

from Courthouse News