Taking the Eighth
Conditions at the jail have become sufficiently lethal for public defenders to say pre-trial detention there is a crime of its own.
Every week, my friend King Williams says that there are no slow news weeks in Georgia. Every week, he is correct.
The special purpose grand jury report on the Trump investigation came out this morning. The jury was ready to light up Lt. Gov. Burt Jones, former U.S. Senator Kelly Loeffler and current U.S. Senator Lindsey Graham on charges, among many many others.
Yesterday, protesters chained themselves to construction equipment at the Cop City site, briefly disrupting development of the Atlanta police and fire training center. This, after Attorney General Chris Carr indicted 61 activists on racketeering charges that drew praise from the governors office, wide condemnation from most other places and studious silence from the city itself.
DragonCon held panels on Cop City, surprisingly. But Garland Favorito, co-founder of Voters Organized for Trusted Election Results in Georgia — a group still pushing bullshit claims of election fraud in the 2020 election — also managed to score a speaking slot on an Electronic Frontier Foundation panel at DragonCon last Monday. I’ll probably write something detailed about that, but every time I review the tape I need to be physically restrained.
Also, more people died at the jail.
Also, more people died at the jail.
Shawndre Delmore, 24, died at Grady Hospital on September 3, three days after being found unresponsive in his cell. His family says he was healthy when he walked into jail in April on burglary and obstruction charges.
It will be weeks before toxicology reports and an autopsy make a final determination of cause. But let’s be clear; 24-year-olds do not simply drop dead as a routine thing. The odds of a random 24-year-old dying in a year are 574 to one against, before accounting for prior health issues. His is the tenth death at Rice Street this year, and the seventh since mid-July. 54 days. Seven dead.
Noni Battiste-Kosoko, 19, died on July 11.
Montay Stinson, 40, died on July 31.
Christopher Smith, 34, died on August 11.
Alexander Hawkins, 66, died on August 17.
Samuel Lawrence, 34, died on August 26.
Dayvion Blake, 23, was stabbed to death on Aug. 31
For all of the sheriff’s office arguments that the deteriorating conditions of the jail are the primary cause of the problem — making a case for a billion-dollar upgrade — I note that at least six of these deaths appear on their face to have nothing to do with prisoners crafting shanks out of rebar carved out of the crumbling walls. No one stabbed Lashawn Thompson to death last year. He died face down in a toilet covered in insects and his own waste because no one who claims to have been watching him gave enough of a shit about keeping him alive.
The county cut a $5 million check to make that lawsuit go away.
I spent Friday morning in Judge Melynee Leftridge’s courtroom, to hear what appears to be the first argument made by the Georgia Public Defender Council for bond on the grounds of Eighth Amendment violations by the state at the Fulton County jail
Ricardo Tolbert is known as Uncle Top in his neighborhood near East Point. On November 23, the day before Thanksgiving, a fire broke out at apartments in East Point. Tolbert busted through the door of a unit on fire, grabbed a 4-year-old toddler and handed her to a neighbor. He helped search other apartments as well, taking burns for the effort.
Firefighters later said that the fire was deliberate. Arielle Jackson, one of two twin girls, had been killed by her mother Nicole Jackson, who then set the fire to cover the death, police said. Tolbert saved Arielle’s twin sister.
A week later, police arrested Tolbert on a murder charge having nothing to do with any of this.
A deputy wheeled Tolbert into court in a wheelchair. The 59-year-old has a mass on his hip that requires surgery. He has a knee replacement and heart problems.
He’s been held without bond in Fulton County Jail since November 28. His wife was waiting in the courtroom hall that Friday. Before the hearing, she said she hoped today he would be coming home.
Arnold Ragas is representing Tolbert. He’s a former Georgia state representative from the Georgia Public Defender Council, and he was there to throw a Hail Mary pass.
He never mentioned the fire. He touched on the formal elements a judge must consider in a bond hearing, called the Ayala factors: is Tolbert likely to run for it if released, does he have substantial ties to the community, his prior felony record, what risk he is to commit crimes on bond, and whether he would intimidate witnesses.
But his fundamental argument is that the jail is unsafe.
“I'm going to start with one simple and I believe irrefutable proposition … The Fulton County Jail is unfit for human habitation,” he said. “We've had, what, about five to ten deaths within the last six weeks? … There have been dozens of deaths over the course of the last two years.” Ragas argued that subjecting someone charged with a crime — any crime — to detention in the jail is effectively a violation of the Eighth Amendment of the U.S. Constitution, the prohibition against cruel and unusual punishment. The condition of the jail raises the constitutional question, he said.
“And once that question is answered, then the question then becomes what are you going to do about it? Because if it's not fit for human habitation, the only argument the state can make is that he’s somehow not human or he gets what he deserves. And that's not who we are.”
This is the first time the council has begun raising constitutional questions about the jail as a matter of bond, Ragas said. Doing so with Tolbert’s case, a murder charge — which normally would be exceptionally difficult for a judge to issue bond on — is deliberate.
“Once you say it’s unfit for human habitation, nothing else should matter,” he said.
The assistant district attorney, Gautam Rao, did not appear well prepared to manage a constitutional argument in what would have otherwise been a routine bond hearing.
“In terms of the Eighth Amendment judge, as it relates to bail, the courts consideration are the Ayala factors, understanding that, of course, the jail is not a great place to be in best of circumstances, and I understand it is not the best of circumstances,” he said. “However, that's the Department of Justice’s consideration, not for this court’s consideration.”
Of course, the superior court can unilaterally order the release of defendants by the jail on constitutional grounds. Rao himself referred to a practice of judicial release, noting that it “would not be applicable to one of the defendant’s charges, which is murder.”
Leftridge, unsurprisingly, denied bond, though without referring either to the regular factors or the Eighth Amendment question.
Ragas has begun filing Eighth Amendment bond requests in other cases now. It may become a trend.
Meanwhile, Maurice Kenner, circuit public defender for Fulton County, filed an emergency motion this morning asking the court to prevent Sheriff Pat Labat from shipping prisoners out of state to alleviate overcrowding.
“Due to a confluence of circumstances including overcrowding, understaffing, a dilapidated physical plant, violence, inadequate hygiene, and corruption among some staff members, the Fulton County Jail at 901 Rice Street NW (hereinafter “the Jail”). is unsafe for detainees,” the petition states, noting the deaths in jail.
Kenner argues that housing prisoners out of state impedes his office’s ability to assist the accused in their defense, and that it violates the plain language of state law, citing O.C.G.A. § 42-4-4, which requires the sheriff to “take all persons arrested or in execution under any criminal or civil process to the jail of an adjoining county, or to the jail of some other county if the latter is more accessible, if the jail of his county is in an unsafe condition, under such rules as are prescribed in this chapter.”
The petition raises some questions. According to the petition, the sheriff’s office hasn’t been consulting with the defense council about moving prisoners. That seems … odd, given the predictable reaction.
Why wouldn’t the sheriff choose closer jails, unless those jails are refusing more transfers? Has the Fulton County sheriff run through every single county jail in Georgia? Is this a cost question? Or perhaps it’s a matter of efficiency — a private prison in Mississippi making an offer for immediate service at a cost the county could bear?
When I’ve got a hearing date for the defense council’s writ of mandamus, I’ll let you know what the Sheriff’s Office has to say about it.