Defending Invisibles

Tyrant’s Foes


From a cramped office in their Edinburg home, Nadezhda Garza and her older sister, Anayanse, publicize the plight of an almost invisible population—thousands of undocumented and legal immigrants held in immigration detention for months or even years while their immigration cases are decided.

In 2009, more than 379,000 people were detained by the Immigration and Customs Enforcement agency. That makes ICE the nation’s largest jailer. A recent agency memo revealed that ICE has set a quota of 400,000 detainees for 2010. Increasing numbers of detainees are being shuttled to Texas from places that have a shortage of detention beds. These transplants are thousands of miles from their families and need help getting their grievances heard.

Last year, Anayanse, 32, who works for the nonprofit Southwest Workers Union, started receiving calls from families in New York. Their loved ones had begun a hunger strike at the Port Isabel Detention Facility, north of Brownsville, to protest the lack of due process.

“At the time, no one was talking about the hunger strike or other problems going on inside Port Isabel,” Anayanse says. “People are in mandatory detention who shouldn’t be. They have no lawyers and are isolated—everything is working against them.”

She and her sister, who’s 27, contacted local news media, which started covering the story. They started lobbying elected officials.

In February, the sisters had one of their biggest successes when U.S. Congressman Solomon Ortiz, a Democrat from Corpus Christi, visited the Port Isabel facility. The previous day, the sisters had brought Zoila Molina, mother of a detainee at Port Isabel, to Ortiz’s office. Zoila told the congressman she was on a hunger strike in solidarity with her 24-year-old son, Ronald, a legal resident. He had been picked up on a minor drug possession charge and held for four months without a hearing.

After Ortiz’s visit, his office looked into Ronald Molina’s case. Ronald was transferred back to Florida and eventually released. Ortiz promised that when Congress takes on immigration reform, he would address some of the sisters grievances in legislation.

Bob Libal, with the nonprofit Grassroots Leadership in Austin, often works with the Garza sisters. “They’ve had a tremendous impact on publicizing the plight of immigrants in detention,” he says. “When you are locked up and far away from home, it’s an amazing thing to have allies in solidarity with you.”

—Melissa del Bosque

Dept. of justice

Judge Debates the Death Penalty


Death penalty opponents have found a hero in State District Judge Kevin Fine. The Houston jurist will hold a hearing on April 27 in the capital murder case of John Green, who is accused of killing a woman while attempting to rob her. Fine has asked both sides to present evidence on whether the death penalty can be constitutional if it has killed innocent people.

The arguments follow a pre-trial hearing on March 4, in which Fine initially declared the death penalty unconstitutional for that reason. According to Fine’s first ruling, the death penalty violates a defendant’s right to due process. Death penalty opponents argue that exculpatory evidence developed using new technologies, such as DNA testing, can’t help wrongfully-convicted persons if the state has already executed them.

But Fine rescinded his order a week later and scheduled the April 27 hearing.

“The implications are more political than legal, because I don’t think that his ruling would ultimately be upheld,” says Robert Owen, a clinical professor at the University of Texas School of Law and co-director of UT’s Capital Punishment Clinic.

“There’s really two separate questions: One is how likely is it that we’re going to execute somebody who’s innocent, and the other question is whether that likelihood is large enough to trigger any legal consequences,” Owen says. “If it went to the Court of Criminal Appeals for their review, based on what they’ve decided in other cases, they would conclude that even if there is some risk that an innocent person will be executed, it’s not a very large risk.”

Owen says that if Fine declares the death penalty unconstitutional and a higher-level court overturns him, he will have still highlighted the risk of executing innocent people.

“By furthering and inspiring a public discussion on those subjects, Judge Fine is doing a great service,” Owen says.

If Fine declares the death penalty unconstitutional, and the Texas Court of Criminal Appeals reinstates it, the case could end up before the U.S. Supreme Court. Even then, Owens says it is unlikely that the current members of the Supreme Court would rule against the death penalty.

—Lara Haase

lesson in zero Sense

The School-to-Prison Pipeline


Mindless “git-tough” policies are depriving Texas schoolchildren of education and introducing them to the criminal–justice system. Since 2006, researchers with the Austin-based nonprofit Texas Appleseed have been documenting the school-to-prison pipeline. The group’s research, based on state data and interviews with school officials, shows that in an overwhelming majority of instances, schools are severely punishing students—through suspensions, referrals to academically inferior “alternative” campuses and expulsions—for relatively minor infractions like using profanity in class.

In its study of expulsions, Texas Appleseed found that during the 2008-09 school year, 5,806 of the 8,202 expulsions, or 71 percent, were discretionary and typically involved nonviolent, noncriminal misbehavior.

Of the discretionary cases, half involved students expelled for “serious and persistent misbehavior” in “alternative education programs.” Critics say these “classes” are more like warehouses, with little educational programming. African-American children are nearly twice as likely to be expelled for subjective reasons.

Many of the students expelled from alternative programs are sent to “juvenile justice alternative programs,” boot camp-like schools run by local juvenile justice boards. Some districts are even referring the kids for prosecution, though no crime has taken place.

“This is the point at which you often see the student for maybe the first time coming into contact with the juvenile justice system,” says Deborah Fowler, lead author of the report. “It can have a devastating impact on a student.”

Incredibly, teens forced into juvenil justice programs for low-level misbehavior are more likely to return to the programs than those sent for serious criminal offenses.

Eventually, most kids do return to regular schools, then find they’re way behind their peers. “We hear from parents and students that it’s at that point that they begin to lose hope and consider dropping out,” says Fowler. For plenty, jail or prison is the next step.

—Forrest Wilder

Dept. of Disabled Policy

The Neglect Goes On


Despite reforms by state lawmakers, abuse and neglect of Texans with mental retardation in state-run institutions has increased the past three years, according to an Observer analysis of state data. Reforms enacted in response to abuse scandals have left the facilities with fewer residents and more staff, yet confirmed allegations of abuse rose 57 percent from 458 incidents in 2007 to 719 last year. The number of abuse cases has dropped slightly so far in 2010, indicating that perhaps the latest reforms are having some effect.

Texas’ 13 sprawling institutions for the mentally retarded—formerly known as State Schools and now called State Supported Living Centers—have been sources of horrific tales of abuse. Since 2005, investigations by the U.S. Department of Justice and numerous media outlets, including the Observer (“Systemic Neglect,” May 1, 2008), have documented hundreds of instances in which Texans with mental retardation were beaten, neglected and, in some cases, killed by staff charged with caring for them.

Despite reforms passed in the past two legislative sessions—including a 12-percent funding increase and nearly 3,000 additional caregivers—the number of abuse and neglect cases remains high.

The facilities are now closely monitored by Justice Department inspectors, and some reforms have already had an effect. In just six months, State Supported Living Centers have added more than 1,000 full-time employees, according to state records. And the facilities house fewer residents as state officials transfer more disabled Texans into small, community group homes. The centers now employ nearly 13,000 workers to care for 4,000 residents.

In the first six months of fiscal year 2010, which began in September, confirmed cases of abuse and neglect have dipped by 19 percent. While lower than 2007’s peak, the 2010 numbers are still historically high.

However, the Legislature’s refusal to give State Living Center employees a pay increase may hamper reform. Direct care workers earn a starting salary of roughly $8 an hour, according to the Texas State Employees Union. Families of residents have often blamed abuse and neglect partly on low pay.

It’s worth noting that confirmed cases of severe physical and sexual abuse have remained fairly constant the past three years, according to state data. But there’s been a sharp increase in confirmed incidents of “neglect,” which usually consist of incompetent oversight: allowing residents to fall from a gurney or leave the facility or harm themselves and others. In other words, the kinds of incidents you might expect from a staff that’s largely earning fast-food wages.

Without a pay increase for direct care workers, it’s questionable whether Texas’ institutions for the mentally disabled can be adequately reformed.

—Dave Mann