TIME justice

John Grisham Says Sentences Often Too Harsh for Child-Porn Watchers

John Grisham speaks during a television interview in New York in 2012.
John Grisham speaks during a television interview in New York in 2012. Scott Eells—Bloomberg/Getty Images

“These are people who haven’t hurt anybody. They deserve some type of punishment, whatever, but 10 years in prison?”

Best-selling author John Grisham blasted the harsh punishment that people who watch child pornography face upon conviction, saying the prison system has “gone nuts.”

“We have prisons now filled with guys my age — 60-year-old white men in prison who’ve never harmed anybody,” Grisham said in a recent interview. Grisham said there are men in prison who “got online one night” who “probably had too much to drink” and ended up on child-pornography websites, a crime he said a friend had committed.

The writer of legal thrillers The Pelican Brief, The Firm and A Time to Kill took the controversial stance in a recent interview with Britain’s Telegraph newspaper, in which he spoke at length about issues he believes face the American criminal-justice system today. During the interview, Grisham shared the story of a friend from law school who served time in prison for downloading child pornography.

“These are people who haven’t hurt anybody. They deserve some type of punishment, whatever, but 10 years in prison?” Grisham queried.

There is wide consensus in the U.S. that the distribution and possession of child pornography is a federal offense that should be punished, but there is controversy surrounding the one-size-fits-all approach to punishment, particularly at a time when sexting and online porn are so prevalent. Over the past 15 years, according to the advocacy organization Families Against Mandatory Minimums, the length of federal sentences for child pornography have increased 500%.

In 2013, the U.S. Sentencing Commission began reviewing the sentencing policy surrounding child pornography, given the complexity of the issue in the Internet age. “Because of changes in the use of Internet-based technologies, the existing penalty structure is in need of revision. Child-pornography offenders engage in a variety of behaviors reflecting different degrees of culpability and sexual dangerousness that are not currently accounted for in the guidelines,” the commission’s chair Judge Patti Saris said in 2013.

Grisham stopped short of defending all convicted sex offenders, adding that he has “no sympathy” for pedophiles. “God, please lock those people up,” he said. “But so many of these guys do not deserve harsh prison sentences, but that’s what they get.”

[Telegraph]

Read next: John Grisham Apologizes for Child Porn Remarks

TIME justice

Supreme Court Halts Some Texas Abortion Restrictions

A group from Texas display their flags during a rally on the Mall for the March for Life anti-abortion demonstration on Jan. 22, 2014.
A group from Texas display their flags during a rally on the Mall for the March for Life anti-abortion demonstration on Jan. 22, 2014. Tom Williams—Roll Call/Getty Images

Justices suspended key parts of a law that has closed all but eight facilities providing abortions in the Lone Star state

The Supreme Court on Tuesday blocked key parts of a 2013 law in Texas that had closed all but eight facilities providing abortions in America’s second most-populous state.

In an unsigned order, the justices sided with abortion rights advocates and health care providers in suspending an Oct. 2 ruling by a panel of the New Orleans-based U.S. 5th Circuit Court of Appeals that Texas could immediately apply a rule making abortion clinics statewide spend millions of dollars on hospital-level upgrades.

The court also put on hold a separate provision of the law only as it applies to clinics in McAllen and El Paso that requires doctors at the facilities to have admitting privileges at nearby hospitals. The admitting privileges remains in effect elsewhere in Texas.

Justices Samuel Alito, Antonin Scalia and Clarence Thomas said they would have ruled against the clinics in all respects.

The 5th Circuit is still considering the overall constitutionality of the sweeping measure overwhelmingly passed by the GOP-controlled Texas Legislature and signed into law by Gov. Rick Perry last year.

But even as it weighs the merits of the law, the appeals court said that it can be enforced in the meantime — opening the door for the emergency appeal to the Supreme Court.

The 5th Circuit decision had blocked an August ruling by Austin-based U.S. District Judge Lee Yeakel, who had found that requiring hospital-style upgrades was less about safety than making access to abortion difficult. Yeakel’s ruling temporarily suspended the upgrade rules before they could go into effect Sept. 1 — and the order from the Supreme Court means they are on hold again.

Allowing the rules on hospital-level upgrades to be enforced — including mandatory operating rooms and air filtration systems — shuttered more than a dozen clinics across Texas.

Until the nation’s highest court intervened, only abortion facilities in the Houston, Austin, San Antonio and the Dallas-Fort Worth areas remained open. And none was left along the Texas-Mexico border or outside any of the state’s largest urban areas.

Some other clinics, meanwhile, had closed even earlier amid enforcement of the rule on admitting privileges at nearby hospitals. That portion has already been upheld twice by the appeals court.

The fight over the Texas law is the latest over tough new abortion restrictions that have been enacted across the country. The office of Texas Attorney General Greg Abbott, a Republican who is the favorite in next month’s governor’s race, is leading the defense of the law.

Critics call the measure a backdoor effort to outlaw abortions.

Attorneys for the state have denied that Texas women would be burdened by fewer abortion facilities, saying nearly 9 in 10 would still live within 150 miles of a provider. The law’s opponents, however, note that still leaves nearly a million Texas women embarking on drives longer than three hours to get an abortion.

Democrat Wendy Davis launched her campaign for governor behind the celebrity she achieved through a nearly 13-hour filibuster last summer that temporarily blocked the law in the state Senate.Justices stop parts of Texas abortion law

TIME justice

Obama to Wait Until After Election to Nominate Next Attorney General

Senate Democrats feared a confirmation vote right before Election Day

President Barack Obama will wait until after the midterm elections to nominate his next Attorney General, a White House official confirmed Tuesday.

Obama has been weighing whether to nominate a replacement for departing Attorney General Eric Holder before November’s election, after the White House announced last month that Obama’s longtime confidant decided to step down. But nominating a candidate before the midterm elections would have complicated the reelection campaigns of vulnerable Senate Democrats who are trying to separate themselves from the unpopular president, with lawmakers being called to state their support for or opposition to Obama’s selection before voters determine the balance of control in the Senate.

Obama is expected to unveil his selection shortly after the election. Among those up for consideration for the post, according to Democrats, are White House Counsel Kathryn Ruemmler and Secretary of Labor Tom Perez.

TIME Thailand

The Investigation Into Thailand’s Backpacker Slayings Is Officially a Farce

Two workers from Myanmar, suspected of killing two British tourists on the island of Koh Tao last month, stand during a re-enactment of the alleged crime, on the island
Two Burmese workers, wearing helmets and handcuffs, suspected of killing two British tourists on the Thai island of Koh Tao last month, stand near Thai police officers during a re-enactment of the alleged crime on Oct. 3, 2014, on the spot where the bodies of the tourists were found on the island Reuters

Allegations of torture, procedural irregularities and wild speculation in the press: Thai authorities are botching a high-profile murder probe

Murdered British backpacker Hannah Witheridge was finally laid to rest in England on Friday. But 6,000 miles away in Thailand, the investigation into her tragic death, and that of her friend David Miller, whose funeral took place Oct. 3, spiraled further into farce.

The main suspects in the killings, which took place on the Thai Gulf island of Koh Tao, have reportedly claimed that they were tortured into a confession, and public prosecutors rejecting the police report.

“The two victims and their families deserve justice, which will only be possible if there is a fair and transparent process,” says Kingsley Abbott, Bangkok-based adviser for the International Commission of Jurists. Above all, he adds, “the burden of proof rests on the prosecution,” as the “two men must be presumed innocent until proven guilty.”

On Sept. 15, the bloodied bodies of Witheridge, 23, and Miller, 24, were discovered on the island that is famous among scuba divers and sandal-clad tourists for its pristine beaches and coral reefs.

Burmese nationals Zaw Lin and Win Zaw Htun, both 21, were arrested last Friday and quickly confessed to the double murder. They had apparently worked illegally on the island for a number of years and were driven, say police, by a desire to rape Witheridge after seeing the young British couple canoodling on the white sand.

The Thai authorities then dragged the two suspects to the rocky outcrop where the tourists’ bodies were found for a grisly re-enactment. Wearing helmets and body armor, they demonstrated for assembled media how the bludgeoning, using a garden hoe and wooden stake, took place and prayed for forgiveness. Both could face a death sentence if convicted.

Yet a litany of questions and inconsistencies hang over the investigation. Other than the apparent retraction, proffered by an official at the Burmese embassy, there has been a rejection of the police’s investigation report, with public prosecutors on Wednesday asking the authors to supply “more crucial information,” “fix certain flaws” and make the 850-page document “more succinct.”

Numerous character witnesses have come out to defend Zaw Lin and Win Zaw Htun and they have no criminal record. Essentially, the case against them hinges on five strands of evidence:

  1. Their Confessions. The most damning evidence in any case is a confession. However, reports have since emerged that Zaw Lin and Win Zaw Htun were beaten and threatened with electrocution during interrogation. (Other irregular workers questioned have alleged they were alternately offered bribes and doused with boiling water.) It also emerged that the translator used was a Rohingya — a member of a distinct Burmese ethnicity that suffers periodic pogroms at the hands of west Burma’s Rakhine majority, to which the accused both belong. There are unconfirmed rumors that the interpreter, who has since even given interviews, actually participated in the beatings. In addition, upon initially being picked up, neither the accused were apparently provided with a lawyer as they were being questioned under the Immigration Act rather than as part of a murder inquiry. (It is unclear at what stage a legal counsel was eventually provided.)
  2. Three DNA Samples. These were found on two cigarette butts close to the crime scene, two of which — from Zaw Lin and Win Zaw Htun — are purportedly matches for samples recovered from Witheridge’s body. The third is apparently that of Maung Maung, a friend of the accused who says he was with them drinking beer and playing guitar on the beach shortly before the attack. However, Dr. Pornthip Rojanasunan, director general of the Central Institute of Forensic Science and the country’s leading forensics authority, on Thursday decried the collection of evidence as a “weak point” and said the police committed a major error when they failed to involve a forensic pathologist.
  3. Maung Maung’s Testimony. This forms the third strand of evidence, although it is no slam dunk. He admits being with his two friends on the beach but leaving them at around 1 a.m. They wanted to keep on drinking, he said, so he went to see his girlfriend. He claims not to have seen any evidence of a crime, according to media reports.
  4. CCTV Footage. This shows the three Burmese riding a motorbike by a convenience store, where they apparently bought cigarettes and three bottles of beer. It corroborates Maung Maung’s version of events, but is circumstantial at best.
  5. Miller’s Cell Phone. It was discovered at lodgings of Zaw Lin, according to police. The device, a black iPhone 4, was apparently smashed and discarded as it did not work inside Thailand. But why would Zaw Lin do that when he could have sold it for at least a month’s salary? And if he was concerned about possible incrimination, why keep it at home?

But there are numerous other threads to tug. Given that Burmese migrants were in the spotlight from the outset, and this pair were well-known on the island and frequently seen in the vicinity of the crime scene, why were they not hauled in for DNA tests and questioning sooner?

In addition, there have been significant procedural irregularities, including allowing tourists into the crime scene before all evidence was collected. CCTV footage has been produced, but with significant gaps, and only from a selection of the many sources available. The defense team will want to examine this all. There is also no complete, undisputed timeline of Witheridge and Miller’s movements prior to the attack. Considering the notoriety of the case, and the victims’ sociable nature in this small community, that is very odd.

Finally, there has been rampant press coverage of the unsubstantiated remarks made by local officials. In the latest, the chief of the prison where the suspects are being held told a reporter Thursday he “is afraid they may commit suicide” because they are “feeling guilty for the crime.”

Thailand does not have jury trials and so the press has free reign to report on ongoing investigations, with the presumption that the sitting judge will be able to discount all speculation and concentrate on the evidence in hand. Even so, it is clearly prejudicial to the suspects to have individuals from such diverse sources as Burmese embassy, the Myanmar Migrant Labour Association and the Thai police, among others, talking openly to the media about what the suspects supposedly think and feel.

“That all these people are coming out and making these statements is incredibly detrimental to a fair trial,” says British labor-rights activist Andy Hall, who, as part of a monitoring mission, has met with the accused, the police, the prosecution team and British Ambassador Mark Kent.

Abbott agrees that normal procedure for a defense counsel would be to stop any further comment. “Our primary concern at this stage is to ensure the two suspects are provided with the assistance of a competent lawyer of their choosing,” he says, adding that whoever is chosen must have “adequate time and facilities to review the evidence.”

Otherwise, we may have to mourn not two, but four lives senselessly lost that night on Koh Tao.

TIME justice

Suspicious Prison Deaths Put a Spotlight on Florida

Latandra Ellington Florida Department of Corrections

Several deaths while in prison custody are under investigation

On Oct. 1, Latandra Ellington was found dead inside the Lowell Correction Institution in Ocala, Fla., apparently from repeated blows to her stomach. About a week and a half before, the 36-year-old inmate had written a letter to her aunt, saying she was concerned for her safety in prison and claimed that an officer named “Sgt. Q” was threatening to kill her.

According to attorneys representing Ellington’s family, an independent autopsy shows blunt force trauma and hemorrhaging to her body from what appeared to be punches or kicks. The attorneys, along with several organizations, including the American Civil Liberties Union and Amnesty International, are calling for a federal investigation into her death.

The Ellington case is one of several suspicious deaths in state prisons that have made headlines in Florida, including a deadly incident in 2010 involving Randall Jordan-Aparo, who reportedly died while being gassed in his cell, and Darren Rainey, who died in 2012 after being forced to take a scalding hot shower that caused his skin to separate from his body.

Ellington’s death is the third fatality in custody at Lowell this year. Two others at the prison are under review by the Florida Department of Law Enforcement.

While the inmate mortality rate in Florida and across the country has remained relatively steady over the last decade, Florida outpaces most states in terms of mortality rate per 100,000 inmates, according to the Bureau of Justice Statistics and the Florida Department of Corrections. In 2001, 182 prisoners died in Florida compared with 297 in 2011, but the population also grew at a similar rate over that same time period. The mortality rate per 100,000 prisoners slightly increased from 253 in 2001 to 294 in 2011.

Part of that may be due to the rapidly aging prison population in Florida, which mirrors the state’s population generally. From 2001 to 2008, the number of Florida inmates who were 55 and older increased by 161%, says Bill Bales, a criminology professor at Florida State University. And the number of federal and state prisoners in the U.S. who were 55 and older increased 94% in the same time period, according to Pew Research.

Overall and nationwide, the largest share of prisoner deaths—almost 90%—are due to illness. But the share of state prisoner deaths due to homicide—which includes homicide committed by other inmates, prison staff or those resulting from assaults prior to incarceration—have increased from 1.4% in 2001 to 2.1% in 2011 around the country, according to BJS.

This year in Florida, there have been three homicides and one suicide in state prisons. Investigations into 99 other deaths are currently pending.

Dan Mears, a criminal justice professor at the University of Florida, says prisons with increases in suspicious inmate deaths often have problems that start at the top and work their way down. Florida’s Department of Corrections, for example, has gone through four leadership changes in the last five years.

“At the end of the day, when you’re asking why some prisons have higher rates of suicide or higher rates of suspicious deaths and why they increase over time, it’s often because they’re being poorly administered—and oftentimes they’ve hired new officers who aren’t as highly trained,” Mears says. “That could potentially fuel those deaths.”

Mears adds that badly run prisons often have inadequate training for officers and don’t properly teach them how to handle conflicts with inmates, which can often lead to fatal consequences.

In September, the Florida DOC fired dozens of employees, many of whom have been involved in deaths that are currently under investigation, including that of Jordan-Aparo, who was gassed in his cell. Their dismissal letters said they were fired for participating “in a force incident that resulted in the death of an inmate.”

A Lowell prison official, Sgt. Patrick Quercioli, is now being investigated in Ellington’s death, according to the Miami Herald, and has been arrested twice while tallying 22 use-of-force filings while working for the DOC.

“Our department should be held to the highest standards, and I have zero tolerance for anything,” DOC Secretary Michael Crews said in a statement.

As the state reviews the case, attorneys for Ellington’s family, who also represent the family of Trayvon Martin, the Florida teen shot and killed by George Zimmerman in February 2012, are calling for the Department of Justice to investigate.

“She was not sentenced to the death sentence,” said civil rights attorney Daryl Parks, according to the Herald. “The Department of Corrections certainly owed her far greater protection.”

TIME 2014 Election

Supreme Court Allows North Carolina Voting Law to Stand in Midterm

A voter displays their "I Voted" sticker on their lapel after voting as others wait in line for the first day of Early Voting on October 18, 2012 in Wilson, North Carolina.
A voter displays an "I Voted" sticker on her lapel after voting as others wait in line for the first day of early voting on Oct. 18, 2012, in Wilson, N.C. Sara D. Davis—Getty Images

Same-day registration and out-of-precinct voting are prohibited in the Tar Heel state this November

Voters in North Carolina will not have access to same-day registration or out-of-precinct voting in this midterm election, after the U.S. Supreme Court on Wednesday blocked an appellant court order to stay parts of a sweeping voting law that voting-rights advocates say could leave many voters disenfranchised come November.

“We are disappointed with the Supreme Court’s ruling today,” the Rev. Dr. William J. Barber II, president of the North Carolina State Conference of the NAACP, said in a statement. Tens of thousands of North Carolina voters, especially African-American voters, have relied on same-day registration, as well as the counting of ballots that were cast out of precinct, for years.”

The North Carolina State Board of Elections said that in 2010, over 21,000 voters registered and voted on the same day during the early voting period, and just over 6,000 voters were able to have their ballots counted even though they voted in the wrong precinct. During May’s 2014 primary, over 400 voters didn’t have their votes counted because these provisions were removed, Durham-based organization Democracy NC reports.

These measures are just two of many that the heavily GOP-backed law eliminated in 2013, in what supporters called an effort to prevent voting fraud in the Tar Heel state. Several organizations have filed a suit against the voting law in the hope of blocking it before this year’s election.

Critics of the law had cause for hope when an appellant court ruled last week that parts of the law should be blocked in November, but the state quickly appealed to the Supreme Court.

In an interview with TIME on Monday, Penda Hair, co-director of the Advancement Project which is representing the North Carolina NAACP in the case against HB 589, said they would “continue to fight this case” which goes to full trial next summer.

“We’re going to do everything we can to make sure voters do get registered and do get to the right precinct,” Hair said. “But, the problem is issues sometimes slip through.”

Early voting begins Oct. 23 in North Carolina. The voter registration deadline is Friday, Oct. 10.

TIME Crime

Boston Police Show Racial Bias in Stops and Searches, Report Finds

A police officer salutes during the National Anthem before the first game of a doubleheader between the Baltimore Orioles and the Boston Red Sox at Fenway Park on July 5, 2014 in Boston.
A police officer salutes during the National Anthem before the first game of a doubleheader between the Baltimore Orioles and the Boston Red Sox at Fenway Park on July 5, 2014 in Boston. Jim Rogash—Getty Images

The ACLU found that police gave little-to-no justification for 75% of more than 200,000 encounters

The Boston Police Department has engaged in racially biased policing, often stopping black civilians in the city with little justification, a new report by the Massachusetts branch of the American Civil Liberties Union shows.

About 63% of the Boston Police Department’s encounters with civilians between 2007 and 2010 targeted African-Americans, according to the ACLU’s Black, Brown, and Targeted report released Wednesday. The data is based off a preliminary analysis of 204,000 of the BPD’s “Field Interrogation, Observation, Frisk and/or Search” reports between 2007 and 2010.

The report found that police gave little-to-no justification for 75% of more than 200,000 encounters examined by the ACLU—listing the cause as “investigative person” most of the time. These encounters involved stop-and-frisk, searches, interrogations, and observations, the ACLU said, but most did not result in an arrest and only in about 2.5% of the total cases did officers seize contraband.

According to data provided by the Boston Police Department, about 23% of the police department is black, a number close to 2010 Census data on the black population of Boston (24.4%). The police department released its own preliminary findings on Wednesday and said in an emailed statement that the data released by the ACLU doesn’t paint the whole picture.

“When the final report is complete, the BPD will seek the advice of an outside consultant to advise on whether there are further steps the Department can take to ensure officers are appropriately conducting FIO’s,” the BPD statement said. “Until then it would be irresponsible and inflammatory to promulgate study findings out of context.”

The report comes on the heels of civil unrest in Ferguson, Missouri, one of several tumultuous events over the summer that highlighted tensions between urban and African-American communities and the officers that police them.

TIME animals

Is a Chimpanzee a ‘Legal Person’? Court Set to Decide

Tarongas Animals Receive Christmas Treats
Lisa Maree Williams—Getty Images

Could determine if a chimpanzee has a legal status akin to personhood, thereby making its captivity unlawful

A New York appeals court will begin hearing a landmark case on Wednesday that could determine if a chimpanzee has a legal status akin to personhood, thereby making its captivity unlawful.

Animal rights lawyer Steven Wise filed the lawsuit in 2013 on behalf of Tommy, a 26-year-old chimpanzee kept by a private owner in upstate New York. The lawsuit alleged that keeping the chimpanzee in captivity was unlawful, because a chimpanzee was not merely a possession of the owner, but rather “a cognitively complex autonomous legal person with the fundamental legal right not to be imprisoned.”

As such, the case called upon the court to grant Tommy the status of “legal personhood,” thereby extending the fundamental human right of habeas corpus, or the right to not be unlawfully imprisoned, to a primate.

The case grabbed headlines, including TIME’s, for its ambitious attempt to blur a longstanding legal distinction between humans and animals. The organization pressing the case, the Nonhuman Rights Project, has stated that the case will not end with Tommy: “Our goal is, very simply, to breach the legal wall that separates all humans from all nonhuman animals.”

TIME Immigration

Asylum in America: A High-Stakes Struggle for Border Crossing Kids

At dusk in Los Angeles, Maria, 15, waits for word on her plea for asylum from extortion and gang threats in El Salvador. Alexis Kenyon—Center for Public Integrity

The children fleeing violence in Central America are desperate, but are they refugees?

 

This story was published by The Center for Public Integrity, a nonprofit, nonpartisan investigative news organization in Washington, D.C.

While other kids enjoyed summer break, a teenager with more on her mind slipped into her only dressy jacket and traveled south to Anaheim, to a nondescript building housing the local office of U.S. Citizenship and Immigration Services.

Lithe and athletic, the girl knew she’d be less than a mile from Disneyland, “the happiest place on Earth.” But for Maria, a pseudonym, fun was a luxury she couldn’t afford that day in June.

At the tender age of 15, she faced an interview to plead, essentially, for her life — to ask for refuge from violence so chilling her family thought it better to smuggle her to the United States in the spring of 2013.

“Two years ago a friend of mine died in a very cold-blooded way. She died cut to pieces. My best friend,” Maria said in Spanish, beginning to recount what she told a U.S. asylum officer.

As she recalled the story again, Maria’s soft voice trembled, and tears spilled down her cheeks.

She said police in El Salvador asked her to identify body parts pulled from a bag dumped in a river. She recognized a birthmark on her friend’s leg. She said she also witnessed a boy shot and dragged off, after a soccer game—a boy later found hanged. And before she fled, Maria said, she’d been asking her father, a U.S. truck driver, for more and more money so she could pay murderous MS-13 gangsters $60 a month to leave her alone.

“I was traumatized,” Maria sobbed. “I still am from seeing that body split apart. That dismembered head. Those arms. … As time went by, I didn’t want to go out, or eat, or do anything. The only thing I wanted to do was to die. I told myself that the same thing could happen to me.”

After the 90-minute interview, the asylum officer told Maria she might know the outcome of her request in two weeks. More than three months later, after starting 11th grade this fall at an L.A. public high school, she was still waiting for an answer.

A test for U.S. asylum

In coming months, the American asylum system’s treatment of young people like Maria will be tested as never before — on U.S. soil and in Central America as well.

The challenge to the system’s integrity and humanitarian obligations follows an 88 percent increase in “unaccompanied minors” seized at the border this year. More than 66,000 kids traveling without parents were apprehended by the Border Patrol between October 2013 and the end of August.

News footage showed minors from Honduras, El Salvador and Guatemala simply walking up to agents to be taken in. Now a record number are expected to apply for asylum based on gang persecution, a basis for refugee status that’s becoming more common— and is a highly debated area of law.

The White House on Sept. 30 also approved a plan to allow a limited number of minors to apply for refugee status—the equivalent of asylum—from inside those three Central American countries if their parents are in U.S. with legal status, including, potentially, parents with temporary legal status.

The plan echoes in-country refugee screenings in the past inside Haiti and Vietnam. But just like Maria, who crossed the border illegally in 2013, children in home countries will face eligibility requirements for asylum refugee status that go beyond experiencing fear.

The asylum application system for minors on U.S. territory has been designed, over time, to be deliberative and compassionate, yet it is by no means a sure thing for kids like Maria.

In the court of U.S. public opinion, some have already reacted with unvarnished hostility to the flood of teens and preteens and their claims to be seeking a haven from relentless violence. “They’re going to be sucking us dry,” Cape Cod resident Mary Woodruff said, as Boston’s WBUR radio taped public debate over a proposal to shelter detained kids at a National Guard base in the popular vacation region.

Yet the public writ large seems to be conflicted. Fifty-two percent of respondents in an Associated Press-GfK opinion poll in late July said children claiming to be fleeing gang violence shouldn’t be treated as refugees in need of asylum. Yet a survey by the nonpartisan Public Religion Research Institute the same month found 69 percent support for allowing minors to stay if U.S. authorities decided it was unsafe for them to be deported.

Unaccompanied minors have an indisputable right to request an immigration hearing and seek asylum, but immigration skeptics want these kids to be treated more like adults who are subjected to rapid “credible fear” tests that can lead to their “expedited deportation.” Refugee rights advocates, meanwhile, are trying to make sure these kids — who have no right to appointed counsel — have help from attorneys.

As federal officials rush to prioritize resolution of minors’ applications, members of Congress are aggressively attacking the current asylum system as well as children’s claims they actually face mortal threats. Meanwhile, pro bono lawyers are struggling to document horrors some teens have faced — while line-level asylum officers face decisions about matters children tell them could mean life or death.

Truth about terror not enough

To win asylum, or refugee status, even children have to go beyond simply proving that they’re being truthful about terrifying experiences.

“While age should be taken into account in making the persecution determination,” says an asylum officers’ training guide, “not all harm to a child, including physical mistreatment and detention, constitutes persecution.”

For her asylum hearing in late June, Maria wore a dark jacket and pants because she wanted to convey respect. Alexis Kenyon—Center for Public Integrity

The Department of Homeland Security declined a request to speak with an active asylum officer. But Christopher Manny, a former asylum officer in Chicago and Miami, explained the constraints of the law.

“As traumatic as it is seeing your friend or family member executed by a gang for refusing recruitment or refusing an extortion demand,” Manny said, “generally speaking that would not be considered grounds for a refugee definition.”

Officers must also be convinced, Manny said, that children’s suffering had a “nexus,” or was rooted in a persecutor’s intent to harm them because of one or more of five reasons: religious or political persuasion, race, nationality or because they belong to an identifiable “social group” that’s persecuted and unprotected.

Since minors, like adults, have no right to the appointment of counsel in deportation or asylum proceedings, they largely depend on nonprofit and pro bono attorneys who often need crash courses from colleagues because they’ve never studied asylum law.

State bar associations have put out calls for members to volunteer — beginning with initial appearances the kids make before immigration judges. Kids are also showing up for help at advocacy groups like Los Angeles’ Esperanza Immigrant Rights Project, Chicago’s National Immigrant Justice Center and Washington D.C.’s Capital Area Immigrants’ Rights Coalition, among others.

Kids in Need of Defense, a nonprofit in the nation’s capital, is scrambling to match Central American minors with counsel from a pool of 8,000 potential pro bono lawyers nationwide that the group has developed at law firms, corporations and law schools.

In September, as part of the budget process, Congress rejected a White House request for $64 million to hire more immigration judges to clear backlogs that delay cases for years and to provide other legal support, including $15 million in direct representation for kids.

The Justice Department, though, is pressing ahead with $1.8 million in grants to groups to bolster legal representation for kids under 16. The Department of Health and Human Services, which runs shelters for the minors, announced in late September that it’s providing $9 million in grants for two years to fund nonprofit legal aid groups that provide counsel.

It’s unclear exactly how many kids will get counsel, but it can clearly make a difference. A recent analysis of a decade’s worth of immigration court records showed that 43 percent of about 100,000 juveniles in the courts had counsel. About half of those kids were ultimately allowed to stay for various reasons, asylum among them. Only one in 10 without counsel was successful, according to researchers at Syracuse University.

“An attorney is so, so central,” said Lisa Frydman, managing director of the Center for Gender and Refugee Studies at the University of California Hastings College of the Law.

“How does a child begin to understand what kinds of evidence they have to put together,” Frydman said, “or begin to understand what the definition of a refugee even means?”

Comprehending the intricacies of the law is just one challenge; lawyers also face the daunting task of figuring out how to gather statements and relevant evidence from foreign countries where people are often terrified to hand over records.

Under current federal law — laws some in Congress now want changed — minors who arrive on their own must be released from Border Patrol custody and placed in shelters within 72 hours. They receive basic child-friendly legal briefings. And if they are from “non-contiguous” countries, like those in Central America, they must be given a date to appear before an immigration judge before they can be deported.

If a child decides to seek asylum, immigration judges transfer their cases for judgment to the U.S. Asylum Office system, which is part of the Department of Homeland Security.

If asylum officers don’t subsequently find children eligible for asylum, their cases return to immigration courts, where they can again argue for asylum in a hearing that can be more adversarial, with a government attorney cross-examining them.

Sorting it out

As images of minors crossing the border began to dominate news programs and talk shows, the issue quickly morphed into a political football laced with confusing accusations and misleading statistics.

Between October and the end of June, more than 1,500 asylum requests were filed by unaccompanied minors. They added up to only 4 percent of all asylum applications nationally during that time. But minors’ requests did more than double in less than a year. By the end of June, about 2,180 cases — including Maria’s, in Anaheim — were pending resolution nationwide, according to data provided by U.S. Citizenship and Immigration Services.

During the first nine months of the 2014 fiscal year, 65 percent of kids interviewed by asylum officers were granted refuge — a rate criticized as excessive in a widely covered press release issued in July by House of Representatives Judiciary Committee Chairman Bob Goodlatte, a Virginia Republican who opposes federal expenditures on counsel for unaccompanied minors. He declined to comment further.

Goodlatte’s July release alleged that too many kids were being rushed to undeserving asylum status on the basis of “proven or possible fraud,” citing an internal report from the Department of Homeland Security.

What the release didn’t say was that the overall numbers of kids approved during that time frame was modest: just 108 minors.

About 60 other cases were sent to immigration judges for what amounts to an appeal. Thirty-eight additional cases were closed for reasons that included failure to appear. Only two of the 108 minors approved were new arrivals who came in during the nine-month time frame; the rest were kids who had arrived earlier.

U.S. government reports on brutal gangs

In that recent nine-month period, some 90 percent of the kids interviewed by asylum officers were represented by counsel. On average, up to now, most minors have taken more than 300 days to file formal application forms. Because kids are kids, and are frightened, lawyers say, it can take weeks, even months, to fully understand what happened to them.

Asylum officers attempt to resolve cases within a few months of receiving an application. Kids’ lawyers say the process is accelerating now that the Department of Homeland Security, the umbrella agency handling border and immigration matters, has made minors’ cases a priority.

To help frame minors’ stories, lawyers say they routinely submit, with applications, U.S. government reports acknowledging the pervasive, brutal control organized-crime rings now exert in Central America.

In 2012, the U.S. Treasury Department designated the notorious MS-13 gang — which Maria said preyed on her — as a “transnational crime organization” involved in global narcotics smuggling and other crimes. A U.S. State Department report also warned in 2006 that kids as young as 8 were targets for gang recruitment, extortion and retaliation in some countries.

Honduras, El Salvador and Guatemala have some of the highest per capita murder rates in the world.

A Congressional Research Service paper issued in July took note of a United Nations survey of about 400 Central American minors in U.S. custody in the fall of 2013. About half said they had experienced “serious harm or threats by organized criminal groups or state actors,” references to gangs and to corrupt police.

But these claims are controversial. San Diego-area GOP Rep. Darrell Issa, chair of the House Committee on Oversight and Government Reform, downplayed the role of gang violence in creating the recent surge among children.

“What you’re seeing is a flood of illegals coming here prepped to say whatever they need to say to get to stay here because the President of the United States has told them, in no uncertain terms: If they get here, he won’t enforce the law,” Issa said at a June congressional hearing. Reports of “cheat sheets” composed by smugglers hired by parents fueled the idea that kids were making stories up.

Maria said it was her idea in 2013 to flee El Salvador, not her father’s, and she implored him to help her.

“The majority of my friends that have stayed in El Salvador are terrified. Some tolerate beatings; others, threats. Others are in the gangs now. Waiting to see when it’s their day to die,” Maria said, her voice shaking.

“It’s a country where no one can even play safely, nor think. Nothing,” she said. “The police are dominated by the gangs. You go to complain about a gangster and a little while later, they know about it.”

Lawyers have argued with mixed success that girls who face rape and servitude to notorious criminal bands in Central America constitute a persecuted social group.

They’ve also argued that kids who resist gang recruitment and face brutal retaliation are a social group, along with kids who witness crimes where police are either incapable or too corrupt to protect them from retaliation.

Lawyers for Maria at the Esperanza Immigrant Rights Project submitted a legal memo arguing that the teenager is a witness to crime who requires protection because she is vulnerable to retaliation.

Patricia Ortiz, Esperanza’s managing attorney, is confident that the kids whose cases she’s taken are truthful.

Patricia Ortiz poses for a portrait near her office win Los Angles, CA, Wednesday Oct 1,2014. (Photo by Annie Tritt)
Patricia Ortiz near her office win Los Angles, CA, Wednesday Oct 1,2014. (Photo by Annie Tritt) Annie Tritt—Center for Public Integrity

“Just because all of them are telling similar stories does not mean that they are lying,” she said. “It just means that they’re living in a country where they are not safe, and they’re in a country where they can’t walk out into the street without being afraid of being murdered or hurt or facing some kind of harm.”

Former asylum officer Manny said officers are trained to spot stories that raise suspicions. They receive bulletins if details in multiple applicants’ stories seem oddly similar.

“What to look for,” he said of children, “is basically the consistency of their testimony, whether they seem like they believe it or whether they seem to be speaking vicariously through someone else.”

Gang refusal a reason for asylum?

The outcome of a case may also depend on how higher-level federal courts have ruled on asylum cases.

In 2012, the U.S. Court of Appeals for the Fourth Circuit, based in Richmond, Virginia, upheld an immigration board’s denial of an asylum claim based on arguments that young Honduran males who had refused to join a gang — and reported harassment to police — were a distinct persecuted group.

Opposition to gangs and resisting recruitment is too much of an “amorphous characteristic,” the court said, for determining group membership.

But in 2013, the Ninth Circuit, based in San Francisco, reversed an asylum denial for a young girl based on arguments she lacked status within an obviously persecuted social group.

The case involved a 12-year-old who had testified in open court in El Salvador that she saw gang members assault her father and heard shots that killed him. She also said she was threatened for testifying and fled to the United States.

Her case had previously reached the Board of Immigration Appeals, the BIA, the highest review body within the immigration system. The BIA rejected the argument the girl, as a witness to crime, met the threshold of “social visibility” needed for a social group argument.

The Ninth Circuit disagreed, finding that witnesses to crimes were a distinct social group, even if they were not visible to “the naked eye.”

In Chicago this summer, lawyers for a 15-year-old from Guatemala framed his asylum bid by describing him as a member of two social groups: minors who resist gang recruitment and kids who are witnesses to crime.

Francisco, as he asked to be called, came north more than a year ago and was interviewed by an asylum officer in August. His voice still sounds like a young boy’s.

In detail, Francisco recounted what he told an asylum officer. Gangsters gave him and a friend messages warning them to join up, or die. Francisco’s friend mocked the gangsters, who were also children, when he tossed a written message he’d been given to the ground. His friend was shot in an ambush on the street that sent Francisco running for his life. “I saw a bullet hit near me,” he said.

Francisco said he spoke to a police detective at his friend’s wake, and he and his mother tried to shield themselves from reprisal by moving. But Francisco said hoods younger than he found them, and his father in Chicago, fearing his son would be killed, arranged to have him smuggled up to the United States.

The asylum officer asked Francisco details about various parts of his story, and showed particular interest in his interactions with the detective and concerns about retaliation, the boy’s lawyers said.

The social group “rubric” is one of “the most common types of asylum claims nowadays — and it’s also one of the most complex,” said Ashley Huebner, managing attorney of the National Immigrant Justice Center’s Immigrant Children’s Protection Project, which represents Francisco.

Huebner said she can’t imagine minors without lawyers trying to sort out what parts of their story are more relevant than others. Former asylum officer Manny agreed. “An attorney’s brief can shed light on a lot of things that may not be expressed clearly by the child.”

Huebner said she doesn’t expect an answer on Francisco’s request for months.

Lawyers’ quests to find documents

Gladis Molina, a nonprofit attorney in Phoenix, Arizona, said she feels an awesome responsibility taking on kids’ cases. But she says she’s also had to turn away kids whose stories simply don’t meet the threshold for asylum or some other type of relief from deportation.

A first-generation Salvadoran-American, Molina, 34, manages the children’s program for the Florence Immigrant and Refugee Rights Program. Her father left El Salvador during its bloody civil war in the 1980s and received amnesty in 1986, during the Reagan administration.

She warns her clients that they must expect “for their story to be turned upside, downside, inward and outward because you get asked so many details.”

Some kids’ stories are so horrible, Molina said, she weeps as she listens. She’s also had agonized clients call her in the middle of night and say, “Lawyer, I don’t feel like living anymore. Life is just not worth living. I’m not happy. I feel lonely.”

Molina recently prepared a complex case on behalf of a Salvadoran girl, who was 17 when she filed her application. She recently turned 18. In mid-September she underwent an interview with an asylum officer for 2 ½ hours.

The girl claims she was raped by a gangster in what may have been an initiation rite. The girl’s mother, who lived in Fresno, California, is now deceased. The young woman came north to join relatives, was detained and is now terrified to return to El Salvador because the alleged rape was reported to child-welfare services. The rapist is in jail, but like many behind bars in El Salvador, the girl says, he has the ability to order a hit on her.

Up until the girl’s interview, Molina was trying to get child-welfare records from El Salvador to bolster her argument that the girl qualifies as a member of a social group — women exploited by gangs — who would face deadly retaliation if deported.

“I want those records,” Molina said.

Molina and another attorney called and emailed a child-welfare administrator and were told the girl would need to give someone in El Salvador power of attorney to release the records. Molina tried her own family connections as well to see if she could get someone on the ground to get the documents.

“I remembered that a cousin of mine knew a doctor whose wife worked for the government agency that oversees real estate taxation,” Molina said. “So I sent her an email and said, ‘I’m an American attorney. You don’t know me, but my cousin knows your husband. Can you please help me get these documents?’ ”

If her client is rejected by the asylum officer and has to go on to an immigration court hearing, Molina said, she intends to redouble efforts to get the records.

Asylum officers will not reject a child’s claim solely because adults failed to generate documentation of abuses. But officers can ask to see certain documents, and lawyers must provide a reason, in writing, why records could not be obtained.

If you can obtain them, Molina said, records can show that a child’s terrible story is “in fact what happened and not something that she’s just conveniently recounting in America to avoid deportation.”

“An unbelievable story”

In 2009, Damion Robinson was just two years out of the University of California at Los Angeles’ law school and a young L.A. business attorney when his firm took on an asylum case, pro bono, that required extraordinary effort — and money — to pursue, and ultimately win in November 2010. Robinson led the effort, and among the key pieces of evidence he chased down was a trove of records related to a Guatemalan girl’s story of sustained abuse at the hands of a local crime boss.

Damion Robinson poses for a portrait near his office in Los Angeles, CA, Wednesday Oct 1,2014. (Photo by Annie Tritt)
Damion Robinson near his office in Los Angeles on Oct 1, 2014. Annie Tritt—Center for Public Integrity

Robinson got involved when Kids In Need of Defense, or KIND, approached the firm he worked for at the time, Sullivan & Cromwell LLP. The firm enthusiastically embraced the case as a pro bono service, Robinson said.

Today, at 31, Robinson handles clients that run the gamut from start-up companies to Fortune 500 firms at Van Vleck Turner & Zaller, also in L.A. He’s eager to represent another minor.

“It was hard to say no, frankly,” the Seattle native said when he began to gather facts about the Guatemalan for what turned out to be a nearly 18-month case.

A Spanish-speaking female assistant helped Robinson slowly unravel the history of the girl, who was living with a relative in L.A. after release from a shelter. At times, Robinson would have to leave the room to let the girl first disclose privately to the woman assistant details of being repeatedly raped, held captive, giving birth at 14, held captive again and beaten and threatened with weapons.

“Her story was unbelievable in a way,” Robinson said. “It was just something I couldn’t even imagine happening …. There was a long, long history of sexual assault and violence, physical violence, against her that was just horrifying.”

The girl said she was first kidnapped by an older man when she was 12 years old. She said the man ran a gang with impunity in a small city. Robinson was amazed to learn that the girl’s mother had persistently filed criminal and civil complaints and obtained restraining orders that local justice officials did not enforce.

The girl’s mother finally sent her daughter out of Guatemala with a smuggler to remove her from the clutches of the man.

A tale that initially felt like it might be exaggerated became vividly real after Robinson and others labored four months to track down copies of the civil and criminal complaints and restraining orders.

“In the U.S., you would just call the clerk and have them send over the court records,” Robinson said, spreading on a table copies of documents in Spanish emblazoned with official stamps.

It was a struggle, he said, with some hired hands demanding exorbitant rates — and then failing to come through. His firm eventually spent at least $9,000 locating and hiring various law groups and services in Guatemala that work to retrieve documents from archives and agencies.

His teen client, he said, “wouldn’t have been able to pay to have that happen. And I think it was pretty instrumental to our case to have those records and have that proof, rather just being her word about what happened.”

And Robinson ultimately went even further.

At the suggestion of Kids In Need of Defense, he contacted Patrick Atkinson, an American who works with exploited minors in Guatemala. Eventually Atkinson, who runs a children’s welfare group called God’s Child, flew up on his own dime for the girl’s hearing in 2010.

Robinson’s client turned 18 after filing for asylum. At that time, the assigned asylum officer said the law didn’t grandfather her into the asylum office as a minor — it would now — so her case was sent back to a judge.

She ended up having a trial-like hearing, testifying for more than two hours with a government attorney opposing her claim for asylum. At one point, Robinson said, the government lawyer argued that the restraining orders showed law enforcement was capable of protecting the girl back in Guatemala.

Atkinson, the expert witness, said he testified at the hearing because he was convinced the gangster would have seized the girl immediately had she been deported back and killed her with impunity.

“The mother did a number of reports about rape, about assault, about domestic violence, and the police reports are there,” Atkinson said. But it’s common, he said, for authorities to be frightened into doing nothing.

“There’s different ways of blackmailing the judges and the police,” he said. “Fear is by far the most powerful.”

That’s the kind of scenario that frightens the Salvadoran girl Maria and her father, who asked to be called Miguel.

Miguel has lived and worked legally in the United States since 2001. That’s when natural disasters that devastated Central America led to the U.S. government to grant temporary protected status, still in effect today, to undocumented immigrants from the region: about 212,000 Salvadorans and 64,000 Hondurans.

Miguel speaks fluent English now and has a good job driving long-distance trucks. His temporary legal status provides stability. But it’s officially temporary. And it didn’t allow him to rescue Maria from El Salvador by sponsoring her to come here legally.

Miguel felt Maria was at risk for being killed in El Salvador, and he feared the local thugs extorting her would demand ever-increasing payments until he simply couldn’t afford it.

So he scraped together $7,500 with help from family and paid it to a smuggler to get Maria out. He didn’t intend for her to get caught. But he was overjoyed when a Border Patrol agent called and said she was in custody after a harrowing raft ride over the river in Texas’ Rio Grande Valley.

Maria spent months in a U.S. Department of Health and Human Services-run shelter in Houston, Texas, after her detention. Then she was transferred to a foster family in Los Angeles while federal officials vetted Miguel.

Now father and daughter live together in a South Central Los Angeles bungalow, where they’re getting to know each other. He always had a long-distance relationship with her but left when she was an infant. Maria’s mom is in El Salvador. Miguel has a new wife and a young son in Los Angeles.

To strengthen Maria’s asylum claim, attorneys were able to persuade teachers and a pastor in El Salvador to provide written statements about her character and history. Lawyers also submitted a news article about her friend’s killing, and United Nations and U.S. government reports about dangers in El Salvador.

“Gang intimidation and violence against witnesses contributed to a climate of impunity from criminal prosecution,” said the State Department’s 2013 El Salvador Human Rights Report.

Lawyers were also hoping to submit Maria’s murdered friend’s death certificate. But when Miguel persuaded a relative in El Salvador to approach the dead girl’s father to obtain the confidential report, the father declined.

“He said, ‘No, I can’t help you guys because I have more kids in my house, and I don’t want them to get killed like my daughter,’ ” Miguel said.

Miguel said he doesn’t fault the father for refusing to help.

Dissolving into tears, Miguel said, “I can’t even imagine how he is suffering now or the kind of life he is living because he’s afraid for his other kids and knowing he cannot search for justice for his daughter.”

The Esperanza Immigrant Rights Project has turned away other Central American minors who’ve asked if for help in obtaining asylum. The attorneys won’t take on cases they don’t believe have merit, managing lawyer Patricia Ortiz said. But their work is exploding, with more than 60 cases involving minors seeking asylum.

The responsibility, Ortiz, 30, said, “is a little bit terrifying.”

Copyright 2014 The Center for Public Integrity

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TIME LGBT

Colorado Allows Clerks to Issue Same-Sex Marriage Licenses

Same sex marriage licenses issued
Jason Woodrich (L) and Ben Hauth share a kiss after signing their marriage license at the Denver County clerk's office where they began issuing same sex marriage licenses July 10, 2014. John Leyba—Denver Post / Getty Images

County clerks who defied a state-wide ban cleared the last legal hurdle to issuing licenses

Colorado county clerks were free to issue same-sex marriage licenses on Tuesday shortly after Colorado’s Supreme Court lifted an injunction against the practice.

The Denver Post reports that three clerks challenged a state-wide ban on gay marriage in June, issuing roughly 350 same-sex marriage licenses despite cease and desist orders from the state’s Attorney General. A Colorado court placed an injunction against the clerks until their case had received a final ruling in the courts. That final decision came Monday, when the U.S. Supreme Court declined to hear all appeals on same-sex marriage cases, deferring to a lower court’s decision that Colorado’s clerks could rightfully defy the ban.

The removal of the injunction on Tuesday was the last legal hurdle for the clerks, several of whom jumped ahead of the decision and issued licenses as early as Monday afternoon.

[Denver Post]

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