Category: reason

Today the U.S. Court of Appeals for the D.C. Circuit decided U.S. Postal Service v. Postal Regulatory Commission. In an opinion for the court, Judge Thomas Griffith resolved a dispute between these two agencies, holding that the PRC could order disclosure of certain financial data related to the sending of mail from foreign countries to the United States via Inbound Letter Post.

If you’re like me, this case may seem a little odd, because one federal agency is suing another. It’s federal government versus federal government, but not in the context of an interbranch dispute.  I am aware of this happening before, as when the Tennessee Valley Authority challenged the Environmental Protection Agency, but should this really be a thing? Should not an intrabranch dispute be resolved within that branch? Apparently not if one is an independent agency.

Judge Neomi Rao apparently had a similar thought. She concurred in Judge Griffith’s holding, but also wrote a separate brief concurrence, which I reproduce below.

I join the court’s opinion in full. I write separately to note the constitutional quandary
raised by a federal court resolving a lawsuit between two Executive Branch agencies. On one side of this dispute, we have the United States Postal Service—”an independent establishment of the executive branch of the Government of the United States.” 39 U.S.C. § 201. On the other, we have the Postal Regulatory Commission—”an independent establishment of the executive branch of the Government of the United States.” Id. § 501. Litigating on behalf of the Commission, the Department of Justice has taken sides in a disagreement between two Executive Branch entities tasked with oversight and administration of the nation’s mails.

This litigation stands in tension with Article II of the Constitution, which vests all executive power in the President and assigns him the duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, §§ 1, 3. “Moreover, because agencies involved in intra-Executive Branch disputes are not adverse to one another (rather, they are both subordinate parts of a single organization headed by one CEO), such disputes do not appear to constitute a case or controversy for purposes of Article III.” SEC v. FLRA, 568 F.3d 990, 997 (D.C. Cir. 2009) (Kavanaugh, J., concurring). The Constitution
creates a unitary executive and limits federal courts to deciding the rights of individuals in properly presented cases and controversies. The posture of this case thus presents constitutional questions about the power of an Article III court to resolve a purely Article II dispute. The fact that Congress specifically created federal court jurisdiction between the Postal Service and the Commission, see 39 U.S.C. § 3663, does not necessarily eliminate the constitutional concern because Congress cannot expand federal court jurisdiction beyond the Article III judicial power. See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 65 (1996) (citing Marbury v. Madison, 1 Cranch
137 (1803)).

Our precedents are clear, however, that such disputes between “independent” agencies, such as the Postal Service and the Commission, are justiciable. See SEC v. FLRA, 568 F.3d at 997 (Kavanaugh, J., concurring) (collecting cases); see also USPS v. Postal Regulatory Comm’n, 886 F.3d 1253 (D.C. Cir. 2018). Therefore, I join the court’s well-reasoned opinion in this case.

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In 2014, Florida deputies shot and killed Jerry Dwight Brown during a small-scale drug bust. Pasco County Sheriff Chris Nocco said the deputies fired after Brown refused several orders to comply. The State Attorney’s Office cleared the deputies of any wrongdoing due to Brown’s alleged noncompliance. But last week, the Tampa Bay Times released a video of the shooting that challenges the department’s official story.

Brown was shot and killed on July 1, 2014. The 41-year-old inadvertently sold illegal prescription pills to an undercover deputy with Pasco County Sheriff’s Office (PCSO). The sting was part of a monthslong investigation into Brown. After the undercover deputy motioned for fellow deputies to move in and arrest Brown, the department claimed that they repeatedly ordered Brown to show his hands and shot him after he made a sudden movement.

Brown died at a hospital following the shooting. The department found that he was unarmed during the interaction.

The day after the shooting, Nocco told 10 Tampa Bay, “When we are ordering commands to show me your hands, when we are telling somebody they need to comply and they make motions that are not, and make our detectives feel their lives are being threatened you have a millisecond to make a decision.”

The sheriff’s office provided Reason with a redacted version of the video from the drug bust. In the video, an undercover deputy interacts with Brown outside of Big Ben’s Tires in Zephyrhills. He urges Brown to enter the vehicle to make the sale. A reluctant Brown does so, takes the pills out, and begins to count at the undercover deputy’s request. 

Armed deputies then approach the car and the video skips 11 seconds. When the video picks up again, the deputies are pointing guns and surrounding the vehicle.

On Friday, almost exactly six years after the shooting, the Tampa Bay Times released the redacted portion of the video.

Several deputies approach the side of the vehicle and begin to shout various commands at Brown. Brown tries to open the passenger door. The deputies shoot through the windshield and Brown screams. Fewer than five seconds pass from the moment the deputies issue their commands to the time the bullets puncture the windshield.

PCSO told Reason that the video, which they did not provide to the Tampa Bay Times—the paper obtained it independently—was released “in direct violation of a Florida State Statute that was in place at the time the video was recorded.” The older statute to which the department is referring exempted recordings depicting the “killing of a person” from the public record. (The language in the statute was narrowed in 2016 to exempt recordings depicting the killing of a law enforcement officer on duty from the public record.)

The department also told Reason that they did not start using body cameras until 2015, and thus have no footage from the incident, nor are they able to provide an original copy of a press release regarding the 2014 incident.

Brown’s death sparked some protests in the area in 2014 but has otherwise flown under the radar, receiving little national attention.

In February, the department reached a $262,500 settlement with Brown’s widow but did not admit liability. In its report on the redacted video, the Tampa Bay Times said the deputies responsible for the killing are still employed by PCSO.

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I’m inclined to support properly crafted three strikes laws, especially for cases like this; and the court seems to be quite right that the trial judge’s decision is unsound under the California three strikes law. On the other hand, I know that others think that such heavy recidivism enhancements are improper, and that five years would be a sound sentence for a crime such as this one, regardless of the defendant’s past criminal history. (Still others might think that five years is too long, given that the victim managed to prevent being physically injured.)

What do you think? Here are the facts and some of the reasoning from People v. Mayfield, decided last week by the California Court of Appeal (in an opinion by Justice William Bedsworth, joined by Justices Richard Fybel and David Thompson):

The members of this panel have enjoyed long careers in the practice of law. We’ve seen enough to make it difficult to shock us. But not, as it turns out, impossible.

Respondent Tyson Theodore Mayfield has an extensive criminal record that includes multiple acts of violence against racial minorities. In this case, he threatened to make a pregnant African-American woman “drop” her unborn baby while she was waiting at a bus station. As a third-strike defendant, respondent was facing a mandatory prison sentence of 25 years to life. However, the trial court [Judge Roger B. Robbins] dismissed one of his prior strike convictions in the interest of justice under Penal Code section 1385 and sentenced him to five years in prison.

The district attorney contends the dismissal constitutes an abuse of discretion, and we agree. Completely. Everything about respondent’s crime and his record shouts for application of the Three Strikes law….

Jasmine C. is an African-American woman who was eight months pregnant in September of 2018. That day, she was waiting at the Fullerton bus station for her boyfriend to pick her up when she heard respondent talking nearby. He was telling his two male companions how he hates “niggers” like Jasmine and “gets his kicks” by hurting pregnant black women. He also asked his cohorts if they wanted to see him go over to Jasmine and make her “drop her baby.”

Jasmine became frightened. Her anxiety increased even more when respondent walked over to her and said, “I don’t like pregnant niggers like you,” “I’m going to make sure you drop your baby.” Jasmine told respondent to stay away from her, but he continued to hurl racial epithets at her. Fearing for her safety, and the safety of her unborn baby, Jasmine took out her pepper spray and sprayed respondent with it.

In response, respondent grabbed Jasmine’s backpack and left the scene momentarily. He then came running back toward her with his fists balled up and told her, “You’re going to pay now, you nigger, I’m going to make sure you really drop this baby.”

By now, Jasmine was so terrified her body was shaking uncontrollably. She somehow managed to run to a nearby café and call the police before respondent was able to carry out his threat. Officers arrived a short time later and took him into custody.

He was charged with committing a hate crime by threatening Jasmine for the purpose of violating her constitutional rights and with the present ability to commit a violent injury or cause actual physical injury. The complaint also alleged one count each of making a criminal threat and petty theft. And it included a sentence enhancement allegation that the criminal threat constituted a hate crime.

In addition, the complaint alleged two prior strike convictions, two prior serious felony convictions and two prior prison terms. Those six recidivist enhancements were based on respondent’s convictions for assault with a deadly weapon in 2005 and mayhem in 2008….

All told, respondent was facing a mandatory sentence of 25 years to life in prison under the Three Strikes law, plus 13 years for the remaining enhancements. At his arraignment he pleaded not guilty, and over the course of the next several months, his preliminary hearing was continued several times to facilitate a plea bargain. During that period, respondent was unable to reach a plea agreement with the district attorney. However, the trial judge indicated he would be willing to strike one of respondent’s prior strike convictions and sentence him as a second-strike offender to five years in prison if he pleaded guilty to the charges.

The prosecution vehemently opposed this proposed disposition. On March 15, 2019, it filed a lengthy sentencing brief arguing the interests of justice did not support the trial judge’s indicated sentence. According to the brief, respondent was convicted of 18 offenses during the 20-year period leading up his current crimes in 2018[:] {1997: Driving under the influence; 2000: Driving with a suspended license; 2003: Battering a police office, resisting arrest and using illegal drugs; 2004: Petty theft and disorderly conduct; 2005: Assault with a deadly weapon; 2006: Failure to appear in court; 2007: Assault and battery; 2008: Mayhem and battery with serious bodily injury; 2016: Driving under the influence; 2017: Hate crime, assault, battery, and driving under the influence.} Eighteen—a remarkable number considering how much of those 20 years he spent in custody.

Most of these earlier convictions were for misdemeanors. However, in 2003, respondent was convicted of felony battery on a police officer, and in 2005, he suffered his first strike conviction for stabbing a man outside a liquor store. Respondent had no prior relationship with the man he stabbed. He just walked up to him, accused him of being a child rapist/murderer and slashed his face with a knife. Respondent received a two-year prison sentence for the attack. However, following his release from prison, he soon reoffended.

In 2006, respondent and a companion contacted a nonwhite couple at a gas station and asked them if they had any spare change. When the woman said no, respondent began making racist statements to her. Then he began punching the man in the face and did not relent until a bystander intervened. In the end, the man suffered a lacerated lip that required eight stitches and for a time hindered his ability to speak and eat. Respondent was convicted of battery with serious bodily injury and mayhem—his second strike conviction—and sentenced to nine years in prison.

That was in 2008. Following his release from prison, respondent was quickly convicted for drunk driving. And in 2017, one year before the instant case arose, he reoffended yet again. The victim in that case was a Turkish man with dark skin and dreadlocks. Respondent approached him outside a liquor store and asked for a light. When the man said he didn’t smoke, respondent called him a “fucking nigger” and began pounding him with his fists. The incident led to respondent being convicted of a felony hate crime, but the trial court inexplicably reduced the conviction to a misdemeanor pursuant to section 17, subdivision (b) and sentenced him to a year in jail.

In addition to providing this information about respondent’s prior cases, the prosecution’s sentencing brief noted respondent has consistently violated the terms of his probation and parole throughout the years. The brief also reminded the court respondent presently had four misdemeanor cases pending against him that were unrelated to the present case. One of those cases was for punching a fellow inmate at the Orange County jail without provocation. Respondent boasted to jail authorities that he was not going to cease his violent behavior while in custody so long as he was forced to have contact with other inmates.

Given respondent’s violent and racist conduct over the past two decades, including his actions in the present case, the prosecution’s brief argued he was a threat to public safety and deserved to be incarcerated for an indeterminate life term pursuant to the Three Strikes law. Nevertheless, the trial judge stood by his indicated sentence of five years, which predictably prompted respondent to change his plea to guilty….

The trial judge exercised his discretion under section 1385, and struck respondent’s 2005 strike conviction in the interest of justice for the following reasons: 1) the circumstances surrounding the current offense “do not indicate a greater degree of danger to society[,]” 2) “[t]here was no injury to any person[,]” 3) “[t]here was no weapon used[,]” 4) respondent’s prior strike conviction is “14 years old and now remote in time,” and 5) respondent was pleading guilty at an early stage of the proceedings.

The judge sentenced respondent to a prison term of five years, representing the requisite double the two-year midterm on the criminal threats count, plus one year for the hate crime enhancement attendant to that count. In so doing, the judge not only struck respondent’s 2005 conviction for purposes of the Three Strikes law, he also struck all of the prior serious felony and prior prison term enhancements. Sentencing on the remaining two counts was stayed pending the completion of respondent’s five-year term. So a defendant with 38 years’ exposure who had been sentenced to 9 years for his previous felony, got 5 years for this one….

In reviewing this decision, we must keep in mind the Three Strikes law is designed to “punish repeat criminal offenders severely” and “drastically curtail a sentencing court’s ability to reduce the severity of a sentence by eliminating alternatives to prison incarceration[.]” To that end, the law mandates the imposition of a 25-year-to-life prison sentence in cases—such as this one—where the defendant is convicted of a serious or violent felony and has previously been convicted of two such felonies. In other words, “If, after having suffered two qualifying felony convictions, an offender commits a third qualifying felony, the Three Strikes law presumes he or she is incorrigible and requires a life sentence.

That doesn’t mean trial courts are powerless to deviate from the Three Strikes law. Under section 1385, the trial court is empowered to strike a prior strike conviction “in the furtherance of justice.” However, that great power should only be used in “extraordinary” circumstances, when the ends of justice demand it….

What … we find considerable here is that racism and misanthropy are motives that are not likely to diminish or disappear. A defendant who boasts about his fights with other inmates and has a long and depressing history of random violence is not likely to emerge from whatever portion of five years his sentence requires him to serve with a thoughtful and pacific approach to his fellow man….

Respondent was also given a tremendous break in 2017 when the court reduced his felony hate crime to a misdemeanor. This enabled him to avoid the imposition of a lengthy prison sentence at that time. {The record does not reflect how in the world that happened.} Yet, before the dust settled on that case, he went out and committed another hate crime, against Jasmine. His unrelenting criminal behavior since suffering his first strike conviction in 2005 demonstrates him to be an unchanged man, with a stubborn character and no discernible prospects for reform….

All of this convinces us the trial court abused its discretion in offering him a reduced sentence…. The judgment is reversed and the matter is remanded to permit respondent to withdraw his guilty plea and plead anew.

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Foreign groups that receive American funding to fight HIV and AIDS must still pledge to oppose sex work, following a U.S. Supreme Court ruling in favor of the requirement. A similar requirement for U.S. nonprofits was struck down as unconstitutional in 2013.

In the recent case, United States Agency for International Development v. Alliance for Open Society International, Inc., U.S. groups whose international affiliates must still abide by the rule sought to have it overturned, too, arguing that compelling anti-prostitution speech from these foreign affiliates was attributed to the American groups and therefore violated their First Amendment rights.

But in a 5-3 decision, the Court rejected their plea.

“In short, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad have no First Amendment rights,” wrote Justice Brett Kavanaugh in the majority’s opinion. While anti-prostitution statements “may be incorrectly attributed to the American organizations,” these groups “are free to choose whether to affiliate with foreign organizations and are free to disclaim agreement with the foreign affiliates’ required statement of policy.”

Also siding in favor of the law were Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas. Justice Elena Kagan did not participate in the case.

In a dissenting opinion, Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor suggest that the court “asks the wrong question and gives the wrong answer. This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations.”

“The last time this case came before us,” writes Breyer, “we held that the First Amendment forbids the Government from distorting their speech by requiring, as a condition of receiving federal funds, that they ‘pledge allegiance’ to a state-sponsored message. This time, the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes.”

“Just as compelling a clearly identified domestic affiliate to espouse a government message distorts respondents’ own protected speech, so too does compelling a
clearly identified foreign affiliate to espouse the same government message,” adds Breyer, rejecting the majority’s suggestion that American affiliates suffered no harm by simply contradicting the compelled messages put forth by foreign affiliates.

“When the Government demands as a condition of federal funding that their clearly identified affiliate ‘espouse a specific belief as its own,’ respondents may express a contrary view through some other corporate channel only on pain of appearing
hypocritical,” he writes. “Leveraging Congress’ Article I spending power to distort respondents’ protected speech in this way therefore violates respondents’ First Amendment rights—whatever else might be said about the affiliate’s own First
Amendment rights (or asserted lack thereof ).”

It’s easy to imagine the conservative justices in this case coming to the same conclusion as Breyer if the compelled speech were of a different variety.

Republicans have (rightfully) objected to, for instance, a California law compelling crisis pregnancy centers that oppose abortion to display messages about where women could get an abortion. Would that suddenly be OK if the California centers themselves were excluded but any international anti-abortion groups they partnered with to help pregnant women in need were still compelled to advertise abortion services?

It’s interesting to note that in 2018 when the Supreme Court decided that California’s compelled speech law was indeed unconstitutional, Justices Alito, Thomas, Gorsuch, and Roberts all agreed with that assessment. Meanwhile, the three justices now opposing the prostitution pledge on First Amendment grounds—Breyer, Ginsburg, and Sotomayor—all said that California’s crisis pregnancy center speech law should be upheld.

Wouldn’t it be nice if our Supreme Court justices could maintain the same respect for free speech and the First Amendment regardless of what subject that speech was about?

For now, however, it looks like the only way to remedy America’s rule requiring groups to denounce prostitution is for Congress to once again take up the issue.

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The U.S. Supreme Court has handed another blow to backhanded attempts at abolishing abortion by making clinics comply with ridiculous and unnecessary regulations.

In a 5-4 decision released Monday, the court struck down a Louisiana law (Act 620) saying doctors who perform abortions must have “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced.” If enforced, it would have left Louisiana with just one abortion clinic statewide.

In the consolidated cases before SCOTUS, “five abortion clinics and four abortion providers challenged Act 620 before it was to take effect, alleging that it was unconstitutional because (among other things) it imposed an undue burden on the right of their patients to obtain an abortion,” states the Court’s summary of the case.

Previously, a U.S. District Court had declared the admitting-privileges law unconstitutional, “finding, among other things, that the law offers no significant health benefit; that conditions on admitting privileges common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety; and that this inability places a substantial obstacle in the path of women seeking an abortion,” states the summary.

But the U.S. Court of Appeals for the 5th Circuit reversed the district court’s ruling. The Supreme Court has now reversed the 5th Circuit’s decision.

Voting to strike down the law were Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, with Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas dissenting.

Justice Breyer notes in the majority’s opinion that the Louisiana law “is almost word-for-word identical to Texas’ admitting-privileges law,” which SCOTUS struck down in 2016.

(Read the full decision and concurring and dissenting opinions here, and more on the 2016 Texas case here.)

“There was one notable difference between the two abortion rulings,” notes Reason‘s Damon Root. “This time around, Chief Justice Roberts sided with the Court’s Democratic appointees and voted to strike down the state regulation. What changed?”

In his concurring opinion, Roberts answers that question:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case. […] Stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

The Supreme Court also ruled yesterday that the structure of the Consumer Financial Protection Bureau is unconstitutional, declined to stop federal executions from moving forward, and upheld a law saying foreign nonprofits that receive U.S. funding must pledge to oppose prostitution. (See The Volokh Conspiracy for more on these decisions.)

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FREE MINDS

Oregon measure to legalize psilocybin moves forward. An Oregon measure to legalize hallucinogenic mushrooms for psychiatric use has enough signatures to get on the ballot in November, its backers said yesterday. “Chief petitioners of Oregon Psilocybin Therapy Initiative, or Initiative Petition #34, Sheri and Tom Eckert, said Monday during a Zoom press conference that the campaign has gathered 164,782 signatures,” reports The Oregonian. “The campaign believes they will know for sure by mid-July.” The cities of Denver, Colorado, and Oakland, California, have recently decriminalized psilocybin, but “Oregon would be the first state to legalize the substance, which is currently a Schedule I drug,” the paper notes.

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FREE MARKETS

More states start reversing reopening. New Jersey and Arizona join Florida, Texas, and California in calling a halt on letting businesses start operating again after the COVID-19 lockdowns. From New Jersey Gov. Phil Murphy:

UPDATE: INDOOR DINING WILL NO LONGER RESUME ON THURSDAY.

We had planned to loosen restrictions this week. However, after #COVID19 spikes in other states driven by, in part, the return of indoor dining, we have decided to postpone indoor dining indefinitely.

— Governor Phil Murphy (@GovMurphy) June 29, 2020

Meanwhile, Arizona Gov. Doug Ducey said Monday that his state would hit pause on phasing in more reopening plans, ban organized gatherings of more than 50 people, and close gyms, bars, and a range of other businesses that had briefly been open.

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QUICK HITS

• Scientists aren’t sure what to make of a mutation in the new coronavirus that now accounts for the majority of cases. “The mutation doesn’t appear to make people sicker, but a growing number of scientists worry that it has made the virus more contagious,” reports The Washington Post.

• Another person has been killed, and a 14-year-old boy wounded, in Seattle’s Capitol Hill Occupatied Protest (CHOP) zone. This is the third fatal shooting in CHOP, and it comes about a week after Seattle Mayor Jenny Durkan said the city would disband it.

• Reddit is canceling more than 2,000 subject-specific communities (a.k.a. subreddits)—including one about President Donald Trump and one about the popular lefty podcast Chapo Trap House—for allegedly violating the site’s content policies.

• The video streaming service Twitch has temporarily suspended the president’s account. “In line with our policies, President Trump’s channel has been issued a temporary suspension from Twitch for comments made on stream, and the offending content has been removed,” spokesperson Brielle Villablanca said.

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In the early hours of March 18, 2019, Hazel McGary’s cellmate woke up to find her on the floor.

This was all too common. McGary, an inmate at FCI Aliceville, a federal women’s prison in Alabama, had been having escalating health problems, including falling out of bed. Her cellmate had been taking care of her, escorting her in a wheelchair to and from the prison’s medical center several times a week, where McGary had been waging a monthslong battle with indifferent prison officials to prove she was seriously ill.

Something different happened that morning, though, when staffers took McGary to the prison’s medical services. She didn’t come back. 

Hazel McGary is one of three inmates identified by Reason who have died from alleged medical neglect since 2018 at FCI Aliceville. Numerous current and former inmates, as well as their families, say in interviews, desperate letters, and lawsuits, that women inside Aliceville face disastrous delays in medical care. They describe monthslong waits for doctor appointments and routine procedures, skepticism and retaliation from staff, and terrible pain and fear.

The Bureau of Prisons (BOP) listed the cause of death in all three cases as “natural causes,” according to public records obtained by Reason. That classification, while technically correct, erases the culpability of the agency. It’s like claiming a man accidentally drowned after you refused to throw him a life preserver.

But the agency doesn’t want to talk about what happened. When asked for more information, the BOP public affairs office said the agency “does not disclose the details of an inmate’s death.” The FCI Aliceville public information officer did not return multiple requests for comment. Reason has been waiting for more than a year for additional Freedom of Information Act records concerning these incidents.

None of these women was ever sentenced to death. But in Aliceville, that’s effectively the sentence they received—for nothing more than the crime of being sick. 

Although the severity of their offenses is irrelevant to their constitutional rights, all three were serving sentences for nonviolent crimes. Under the Eighth Amendment, which prohibits cruel and unusual punishment, the government had a legal obligation to provide basic necessities to them, including health care. This requirement is ostensibly what separates our enlightened justice system from the sadism of the past.

Their deaths are a reminder that the barbarism the Constitution intended to forbid never really disappeared and is still with us today. They also point toward the need, at the very least, for stronger independent oversight of the BOP’s medical services. At most, they raise the question of whether these women and other offenders should be sent to prison at all, given the U.S. government’s inability to meet the Eighth Amendment’s low bar.  

Beyond abstract principles, each one of these women had families who loved them. McGary’s daughters, Kentiesha and Apolonia Kimble, had been calling the prison for months trying to get help for their mother. 

“They ain’t do nothing,” Kentiesha tells Reason. “They laughed at her. They said she was faking. They told us she was too young to be having a heart attack.”

‘We called the jail. They were hanging up in our face.’

Prior to her death, McGary had been going to Aliceville’s medical center several times a week, complaining of chest pain, fatigue, and shortness of breath, according to an account written by Aliceville inmate Cheryl Singleton and sent to Strickland Webster, LLC, an Atlanta law firm. Singleton wrote that McGary’s vitals consistently showed “extremely high blood pressure,” but medical staff kept telling her to come back later.

One doesn’t simply stroll in to see a doctor or a nurse in federal prison. Inmates must ask a corrections officer for an appointment as the officer walks by at “sick call” every morning. If you miss it for whatever reason, tough luck. You have to wait until the next morning, unless you’re quite literally dying. Inmates put on the sick call list then go to a waiting room and wait, often for hours.

“Sometimes at sick call, you don’t get seen until 2 o’clock in the afternoon,” says Caroline Trude-Rede, a former inmate at FMC Carswell, a federal prison hospital for women in Texas.

Singleton wrote that McGary’s health problems started after a two-week stint in the “special housing unit” or SHU, a sanitized term for solitary confinement, where she experienced panic attacks, shortness of breath, and chest pains.

Her health began to seriously deteriorate in January 2019, according to Singleton’s account. McGary began suffering from severe fatigue, which was exacerbated by her being housed on an upper floor, requiring her to climb stairs to go to and from her cell.

By February, she was mostly confined to a wheelchair and could barely stand. McGary’s daughters say they were sending money to her cellmate, Crystal Green, to escort their mother to and from meals, showers, and her increasingly frequent trips to Aliceville’s medical services. But both McGary’s daughters and Singleton say she was turned away time and time again.

“I called Washington, I called the mayor’s office, I called region [BOP’s Southeast Regional Office]. Nobody could help us,”  Kimble says. “We called the jail. They were hanging up in our face.”

Finally, on the morning of March 18, 2019, Green woke up to find McGary on the floor.

“Why didn’t you call my name like you usually do?” Green asked, according to Singleton’s account.

McGary said she tried as loud as she could. Green pressed the medical emergency button, and five minutes later the staff came to take McGary away.

“They took her to medical, and that was the last time Green saw Hazel alive,” Singleton wrote.

McGary’s daughters say they didn’t receive a call from the prison about their mother until around 4 p.m., hours after she had died. “We were sitting around not even knowing our momma was dead,” Kimble says.

The daughters say an autopsy determined that McGary died of a blood clot that traveled from her leg to her heart. McGary’s daughters also say the prison never sent them their mother’s personal belongings, which they assume were destroyed.

The most disturbing part of reading the pleas for help from inmates at Aliceville is that many of them can plainly see what’s coming, but they’re powerless to stop it.

On March 9, 2019, a little more than a week before her roommate would wake up to find her on the floor of her cell, McGary sent a letter to the lawyers at Strickland Webster begging for help. The letter describes McGary’s months of futile trips to the prison’s medical services, the “heat rush” she felt in her chest every time she had to climb stairs, her suspicions that her medical records were being altered or destroyed, and staff’s open contempt for her. The letter says that when she finally managed to get a meeting with officials from the BOP’s regional headquarters, they tried to blame her heart problems on drug use or syphilis.

“I have been told for over eight months I am scheduled for a visit to the cardiologist,” McGary wrote. “Still have not made it there yet. The warden and the region are useless. They send us through all of these long, drawn-out procedures. By the time [they’re done] we will be home or dead.”

Nine days after she sent that letter, her latter prediction came true. She was 49 years old.

‘Y’all, they killed her, they killed her’

Almost a year to the day before Hazel McGary’s death, another family received a heartbreaking call from Aliceville federal prison. Rosemary Ofume, 59, died on March 21, 2018.

Ofume had only been transferred to the prison earlier that month. According to her family and a civil rights lawsuit filed this March, she became seriously ill after having an adverse reaction to an unnecessary tuberculosis test that she was coerced into taking.

The lawsuit says Ofume “vocally objected to being administered this test on the grounds that she had been given the test twice before and her doctor warned her not to let anyone give her that test again due to hypersensitivity concerns.”

Ofumen’s health declined dramatically between March 15 and 19. She had a bad cough, and Grant Iriele, one of her sons, says attorneys who visited her at Aliceville told him that her skin had taken a sickly dark gray, dark blue color—a sign of cyanosis, which is caused by oxygen-depleted blood.

The lawsuit claims medical staff at Aliceville “were well aware of Rosemary’s suffering and serious medical need because when she was at the clinic [they] belittled her, turned her away, refused to diagnose her or otherwise provide her with medical care.”

Lorri Jackson-Brown was incarcerated at Aliceville until this May. She says she witnessed four inmates suffer fatal medical neglect at the prison during her stint there, including Ofume, McGary, and Doris Nelson, whose case is discussed further below. (The fourth case, not discussed in this story, is former Aliceville inmate Jean Cox. In 2017, A federal judge granted compassionate release to Cox, at the request of the BOP, after she was diagnosed with terminal cancer. Reason has been unable to learn more about that case.)

“When I met Ms. Rosemary, somebody was wheeling her out [of the prison’s medical center], and she was in tears,” Jackson-Brown says. “I knew the girl that was pushing her. I asked what’s wrong with her. She said, ‘They won’t even see her. This lady is sick, she’s spitting up blood.'”

Throughout her sickness, Ofume was in frequent contact with her children.

“I spoke to my mother the night before, and I remember pleading with her to get something to eat,” Iriele says. “She was saying that it was hard for her to make it to get something to eat because she felt so weak and drained.”

At the time, Iriele and the rest of his family thought she just had a bad cold. But the next morning, the prison called to deliver the news that she had died.

According to the lawsuit, which relies on eyewitness accounts from other inmates, Ofume was having severe breathing problems. Her cellmate pressed the emergency button to try to summon help, but the corrections officer who responded told her to fill out paperwork and wait for the next sick call. The roommate went to try and get medication. When she came back, Ofume’s condition was worse, and the roommate hit the button again, only to be dismissed by corrections officers, again. The third time her roommate hit the emergency button, a different officer took the situation seriously, but by that time it was too late. Ofume was unresponsive. 

“They locked us down that morning, and we knew something was wrong because we saw them running to her building,” Jackson-Brown recalls. “That same girl who was pushing her came out later crying. She said, ‘Y’all, they killed her, they killed her.'”

Iriele says that when his family asked for his mother’s body to be sent to them so that an independent autopsy could be performed, the BOP told them that it would not be released for two months.

The lawsuit says the BOP relented under pressure, and an independent autopsy found that Ofume died of pulmonary embolisms—small blood clots in her lungs.

The Mayo Clinic notes that pulmonary embolisms are fatal in about one-third of untreated cases, but “when the condition is diagnosed and treated promptly, however, that number drops dramatically.”

Iriele believes Aliceville is trying to cover up its mistakes. Portions of her medical records turned over by the BOP are missing or sloppy, the lawsuit says. His mother was also a meticulous note-taker, but Iriele says that when her journal was returned to the family along with her other belongings, several pages had been torn out from around the date when she received the tuberculosis test.

The most infuriating part, he says, has been what details he has learned from other Aliceville inmates.

“Her roommate kept pulling the alarm to get people’s attention, and they kept turning it off and callously telling [the roommate] to take her to the sick bay when it opened, which is not their protocol for when someone is in danger,” Iriele says. “They saw that she was unwell, and they couldn’t care less.”

‘I stay in pain and medical’s not doing anything for me. They won’t do anything.’

Last year, three months after McGary’s death, another inmate died. 

Doris Nelson’s sentencing documents show a federal judge recommended to the BOP in 2015 that she serve her sentence at a federal prison in Dublin, California, due to health issues. Instead, she ended up in Aliceville, where she taught classes for other inmates.

“She taught classes with me,” Jackson-Brown says. “Very nice lady, I loved Mrs. Nelson. One day I just happened to look up, and she’s in a wheelchair.” 

Jackson-Brown asked her what was wrong, and she says Nelson told her she felt flushed and couldn’t walk: “She said, ‘I stay in pain and medical’s not doing anything for me. They won’t do anything. I don’t know what’s going on with me.”

One day, Nelson delivered some startling news. 

“She said, ‘Do you know now these fools want to tell me they think I have cancer, and I’ve had it for a long period of time?'” Jackson-Brown remembers. “She said, ‘Who does that? Now all of a sudden you want to let me know I’ve got cancer?'”

“I told her to meet me at the library on a Saturday,” Jackson continued. “Two days later she was dead.”

Nelson, 60, died at Aliceville on June 14, 2019.

“There was an ongoing struggle to get her diagnostic treatments,” an attorney for Nelson’s family told the Spokane, Washington, newspaper Spokesman-Review after her death. “She was in terrible pain and when I know more, I’ll advise the family.” 

‘I’m lucky to be alive.’

Some former inmates say they barely escaped Aliceville with their lives. Holly Frantzen, 49, says she was fit and healthy when she first arrived at the prison in 2019. The only medication she was on was Effexor, an antidepressant.

Extended-release Effexor is only supposed to be ingested via capsule, according to the Mayo Clinic, which notes that one of the less-common side effects is rapid and irregular heartbeat. 

However, Frantzen says Aliceville staff abruptly began pouring it out of the capsule and giving it to her in a cup, either dry or suspended in water.

Frantzen says she complained that the crushed pills were making her feel strange, but she was ignored. Worse, she says the prison forgot to refill her prescription, leaving her without medication for three days, which is also not recommended because of severe withdrawal symptoms. Frantzen’s prescription was finally refilled, and she was given another crushed dose in the pill line that evening.

She doesn’t fully remember what happened the next morning, June 4, 2019.

“I guess I got up and woke my bunkie early in the morning and told her my arms and chest hurt, and I was real hot,” Frantzen writes in an email. “The guard opened the doors, my bunkie went and got me some ice water, and I stiffened up and fell over. My heart stopped.”

Frantzen says a staffer eventually resuscitated her via CPR, but she remained in a coma for about two weeks. The BOP never informed her family, according to Frantzen and her father, Weldon Wyckoff.

“We were emailing every day, and all of a sudden the emails stopped,” Wyckoff says. “I didn’t know what was going on for about a week. Ten days later I got a letter from one of the people she was incarcerated with that told me what happened.”

Wyckoff says the BOP has a moral responsibility to inform families. “Just because people are incarcerated doesn’t mean that they don’t have meaning,” he says.

Frantzen was transferred to FMC Carswell and now has a defibrillator in her heart.

“They would just brush you off and tell you to go buy Tylenol at the commissary,” Frantzen writes of her time in Aliceville. “It was awful really. They did not even call my family and let them know I was in a coma … So now here I am with PTSD [post-traumatic stress disorder] about meds and medical staff. I am lucky to be alive.”

‘What these people did is inhuman.’

“It’s so traumatic that I don’t think I want to relive it, because what these people did is inhuman,” a former Aliceville inmate says in an interview with Reason.

The woman, who wishes to remain anonymous, was incarcerated at Aliceville for four months between late winter 2013 and spring 2014. Now in her mid-30s, she says she suffered unbearable uterine pain and bleeding, and that prison staff and doctors repeatedly tried to coerce her into having a hysterectomy.

Before she arrived in the federal prison system, she says a doctor had prescribed her birth control to manage pain and bleeding from a previous surgery for ovarian cysts that resulted in one of her ovaries and one of her fallopian tubes being removed. But once inside prison, she was taken off birth control, and soon she began experiencing excruciating pain and heavy bleeding.

“I was going to lose my mind, I was so in pain,” she says.

The woman says at one point a physician assistant at Aliceville performed a vaginal exam on her using forceps. However, all she could cajole out of the prison staff for her pain and bleeding was extra-strength Tylenol with codeine.

She was only transported to a local hospital to see a doctor, she says, after her family enlisted then-U.S. Sen. Bill Nelson, a Democrat who represented Florida, to contact the prison on her behalf. 

Inmates and their families often try to recruit their representatives in Congress to press the BOP into action, with mixed results. For example, Reason reported in 2018 that Rep. Rob Wittman (R–Va.) contacted the BOP three times on behalf of the family of Frederick Turner, a nonviolent drug offender who was sent to a violent, gang-ridden federal penitentiary where he feared for his life. Turner’s requests for transfer were denied, and he was later found dead in his cell.

When the woman was finally taken to a local hospital, she says the doctor and prison officials tried to pressure her several times into having her remaining ovary removed. When she refused to consent to the surgery, she says she was retaliated against. She was put in the SHU and had her wheelchair, which she used when the pain became too intense, taken away.

“I’m a black woman with an accent who committed a crime, and to them I have no right to think that I should have kids or should want to procreate,” she says.

After several months of refusing to consent to surgery, she says she was abruptly transferred to FMC Carswell, where she saw “stomach-wrenching” medical neglect, including one woman who died of kidney disease.

“She could barely walk, her hair was falling off, she looked like a zombie, and surely enough, she died,” the former inmate says. “Her family did apply for compassionate release. They never released her. They let her die in prison.”

After she was eventually released from federal prison, the woman had a successful surgery to remove a cyst from her remaining ovary, but she says she still has long-term issues stemming from her incarceration.

“I still wake up at 5, 5:30 every day,” she says. “If I don’t get off my bed, I still hear them knocking on my door. I know I have PTSD.”

‘She belongs to the BOP.’

A mother of another current Aliceville inmate who wished to keep her daughter’s name anonymous to avoid retaliation says her daughter has been waiting for a routine surgery since last July.

“She was told by one person there at the health services administration that until she was throwing up blood every day, they weren’t going to do anything for her,” the mother says.

The delays, uncertainty, and fear weigh heavily on family members of incarcerated people.

“If they took her to the hospital, or something horrible happened, I’m not even going to know until it’s all over, because in an emergency situation, they don’t contact me,” the mother says. “In their eyes, she’s really no longer my daughter. She belongs to the BOP.”

Meanwhile, the women at Aliceville wait. One current Aliceville inmate says she is confined to a wheelchair because of ongoing medical neglect at the prison.

“I used to walk, and after medical neglect I am now in a wheelchair 24/7, 365!” Aliceville inmate Kerstin Jones writes in an email. “I was also witness to three inmate deaths here.”

Jones says she ended up in a wheelchair after suffering a grand mal seizure and a mild stroke. She also also says it took Aliceville officials nine months to send her out for an MRI, then another eight months to see a neurologist.

“What upsets me is the fact that they told me here that there was nothing wrong with me,” Jones writes. “They tell people that excuse all the time, and that’s how they die here.”

“We have women that have been told they have a short time to live, and they still will not do anything for them medically,” Jackson-Brown wrote in an email before her release. “One woman has only 13 percent of her heart working, and they don’t do anything for her. One woman has severe lupus, and they get her half the treatment that she needs. The list can go on and on.”

In her last letter to the Atlanta law firm, McGary mentioned an inmate with lupus as well.

“These medical experts have a lady here with lupus,” she wrote. “They have been altering her results back and forward. She’s been on a catheter for over four months. And they won’t send her to the nearest medical facility. These people here tell us to not hit the panic button unless our bunkies are dying […] Our lives here are in harm’s way.”

Since COVID-19 began sweeping through the federal prison system in late March, Frantzen and other inmates have been petitioning wardens and federal judges to grant them compassionate release. Frantzen filed a court petition on May 18, seeking compassionate release, arguing that, as a survivor of sudden cardiac arrest, she was at elevated risk for complications and death if she contracted COVID-19. A federal judge denied her petition a day after it was filed.  

 ‘The level of a constitutional violation’

It’s not just inmates, though, who have found Aliceville’s health care dangerously deficient. Last July, a federal judge granted Aliceville inmate Angela Beck’s petition for compassionate release after finding that Beck had suffered “grossly inadequate” delays in treatment for aggressive breast cancer while incarcerated.

U.S. District Judge Catherine Eagles ruled, over the opposition of federal prosecutors and the BOP, that Beck’s “invasive cancer and the abysmal health care Bureau of Prisons has provided qualify as ‘extraordinary and compelling reasons’ warranting a reduction in her sentence to time served.”

According to Eagles’ order, Aliceville officials made Beck wait two months for imaging after she first found lumps in her left breast. Then she had to wait eight months for a biopsy, which confirmed the cancer, and two more months for surgery. By that time, the cancer had spread to her lymph nodes, requiring a radical mastectomy. Five more months passed before Beck’s first appointment with an oncologist, who determined that it was too late to begin chemotherapy at that point.

Eagles wrote that the neglect Beck suffered “likely reached the level of a constitutional violation,” and that if she remained in BOP custody, she would continue to face “a substantial likelihood of substandard medical care for her life-threatening disease.”

Such orders are rare, though, and court dockets around the country are stuffed with similar claims.

Another Aliceville inmate, Terri Mollica, filed a petition for compassionate release in March, citing Beck’s case. According to a federal judge’s ruling on her petition, Mollica has an untreated uterine fibroid that weighs roughly 15 pounds and “causes ‘visible protrusions’ from Ms. Mollica’s abdomen and causes her pain, uterine bleeding, anemia, infection, and fevers.” She has been waiting in pain for nearly four years for outside treatment since an Aliceville physician first diagnosed the fibroid in 2016.

However, despite finding that Mollica’s condition was “undoubtedly a very painful burden,” U.S. District Judge Karon Bowdre ruled that Mollica had not proven she was at risk of death and that she wasn’t debilitated “to the extent that she cannot care for herself.” Bowdre recommended that Mollica file an Eighth Amendment lawsuit.

‘Deliberate indifference’

Maria Morris, a senior staff attorney at the American Civil Liberties Union’s (ACLU) National Prison Project, says that, while prisoners are guaranteed health care under the Eighth Amendment, the standard of care is fairly minimal. Under current Supreme Court precedent, an inmate challenging inadequate healthcare must show “deliberate indifference” by officials.

“I choose to believe that there are some prisons and jails that are doing a reasonably good job,” Morris says. “That said, at the ones that I have looked at—and I’m often caused to look at them due to complaints—it’s abysmal.”

Morris says that in the prisons and jails she investigates she often finds officials generate paperwork to give the illusion of care, while doing little to actually address medical issues.

“There are a shocking number of incidents in the health care systems that I’ve looked at where problems are acknowledged and then essentially ignored. Sometimes that can go on for weeks or months or even years.” 

“You see a complete lack of interest in resolving problems,” she continues. “You see people who have a serious problem one day, and then the next day it’s completely fine, according to the paperwork. Then the next day someone else is saying everything is terrible. You see people dying of bedsores.”

That’s not hyperbole. The ACLU has been in litigation with the Arizona Department of Corrections since 2012 over its healthcare services or lack thereof. Courthouse News, a news outlet that covers legal news around the country, summarizing a report by an independent doctor who toured one Arizona prison, described it as “an understaffed system in which an inmate died with infected lesions swarmed by flies, a man who ate his own feces was never seen by a psychiatrist, and a woman swallowed razor blades while allegedly under constant watch.”

Crystal Munoz was incarcerated at FMC Carswell, the federal prison hospital for women in Texas, for eight years, until President Donald Trump granted her clemency this February. She says she saw three women there die from negligence.

In one instance, she says she was sitting in sick call when she saw a woman pushing another inmate in a wheelchair. The two were banging on the door, begging for someone to look at the woman in the wheelchair, but they were repeatedly told to sit back down.

“After about three times, she pushed the lady in the wheelchair to the restroom, which was just right around the wall from where we were sitting, and [the woman in the wheelchair] fell over and died of a heart attack.”

“Had the staff paid attention in that moment instead of telling them to get away from the door and go sit down—you know, basically wait their turn—then the lady would still be alive.”

The Fort Worth Weekly newspaper published investigations in 2007 and again in 2012 detailing suspect deaths and abysmal medical care at Carswell.

The newspaper reported that in one case, “an ant infestation, in a ward for paralyzed and wheelchair-bound women, was so bad that ants were found swarming over—and in one case, inside—the women’s bodies.”

Although the BOP declined to comment on McGary, Ofume, or Nelson’s deaths, a spokesperson sent Reason a statement copied from a page on the BOP’s website about its health care services, which says the agency “has trained medical personnel at all of our correctional institutions and these institutions provide essential medical, dental, and mental health (psychiatric) services in a manner consistent with accepted community standards for a correctional environment. The BOP uses licensed and credentialed health care providers in its ambulatory care units, which are supported by community consultants and specialists.”

An Unanswered Question

This story could have been written about any number of prisons or jails. Medical neglect of incarcerated people is a problem across the country on federal, state, and local levels. It’s a national disgrace—the kind people prefer to ignore. Prison officials downplay or hide the scope of it, there is a high bar for inmates trying to bring Eighth Amendment lawsuits challenging prison conditions, and the public by and large pays little attention to what happens behind prison walls.

Inmates know all this, but they send emails and letters anyway, like messages in bottles, hoping they will drift by chance to someone who can do something about it.

Last year on March 18, the day that Hazel McGary died, another woman at Aliceville sent an email to her mother, who in turn sent it to FAMM, a criminal justice advocacy group. FAMM passed the message along to Reason, which led to this investigation.

“Today the fourth person died since I have been here,” the inmate, who wishes to remain anonymous for fear of retaliation, wrote. “She died in medical at around 1 p.m. after sitting in medical complaining of chest pains since 8 a.m., waiting to be seen. My friend from my unit was in medical with her and described the lack of concern shown to this poor woman. Her family I pray learns the truth of how she died, in the hallway slumped over in a wheelchair, until she fell out into the floor dying, laying there with no one rushing over to assist her—praying for an ambulance that never came.”

“My friend told me that that lady today in medical kept saying, ‘I am going to die, I am going to die,'” the message continued. “And she did … but did she have to?”

That’s a question Reason has been asking for the last year, and a question the BOP appears to have no interest in answering.

Zuri Davis contributed to this story.

Note: Written accounts from inmates in this story have been edited for clarity and style.

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