Prison Pen Pals Chip Away at the Prison-Industrial Complex One Letter at a Time

Truthout
March 28, 2022
BY  ,  

On April 4, 2022, the state of Delaware is set to join dozens of prisons in 18 other states in ending physical mail sent inside the prison system. The policy would force loved ones, activists, and others to communicate only via costly digital platforms. Monica Cosby, a formerly incarcerated grandmother and an activist with Moms United Against Violence and Incarceration, said on the podcast Beyond Prisons that these policies are “decidedly cruel and intended to harm.” Receiving mail is a critical point of support for people on the inside.

Since the uprisings of the summer of 2020, more people than ever are interested in working to build a world without police and prisons. Organizations working toward this goal take many forms, including projects that may not be immediately recognizable as abolitionist on their face: pen pal or letter-writing exchanges between people inside and outside prison.

Ella Rosenberg is a member of the Knox College chapter of Young Democratic Socialists of America, a subsection the Democratic Socialists of America that has college chapters and is organizing toward a mass labor movement. She says that her peers are among those becoming more aware of prison abolition, and it made them want to learn more about what was happening in the Hill Correctional Center, a prison located in the same town as their college: Galesburg, Illinois.

“If we on the outside don’t make the effort to make these connections, then they’re never going to get made, because that’s the point [of the system], is to cut people off,” Rosenberg says. “I think by writing these letters, a little bit, it is breaking down that barrier. And it’s bringing the people in prison back into the community where they live.”

Rosenberg says this is why she was insistent on writing to the men in the Hill Correctional Center, in particular: “This is the prison in our town. We’re writing to these guys because they’re right here.”

Rosenberg has been writing to her pen pal, Kevin “AK” Hemingway, for just over a year now. Hemingway told Truthout that when Rosenberg first wrote to him, it was “unexpected that a person like that would reach out,” and that he even wondered if perhaps she wanted to study him. With the benefit of time, however, the two have built a strong, trusting relationship that thrives on their differences. Hemingway says, “She taught me how to be a friend. I didn’t know how to be a friend with a woman.”

Abolitionists have been exchanging letters as part of their everyday political practice long before 2020. Black and Pink, a national organization dedicated to abolishing the criminal punishment system and liberating LGBTQIA2S+ people and people living with HIV/AIDS, was founded in 2005 with letter-writing as a core component. Black and Pink currently coordinates a national database of approximately 20,000 people looking for incarcerated pen pals.

Andrea Kszystyniak, who helps run Black and Pink’s pen pal program and edits the organization’s newsletter, believes that for many people on the outside, pen palling can be “a radicalizing engine.” That’s because writers are forced to confront the full humanity and circumstances of the people they write to, and can easily see that prison “isn’t helping this person…. [It’s] a disabling agent, intentionally destroying people’s mental health.”

Like Rosenberg, Kszystyniak asserts that the prison-industrial complex “tries to completely erase people and systematically strips them from all of their support systems, until they’re completely alone.” After that, a person’s “will to fight will go quickly.”

Charley, who has been writing to their pen pal for about five months as part of the California Coalition of Women Prisoners Writing Warrior project, compares the work of letter writing to the principles of participatory defense, a community organizing model that engages the families and communities of people facing charges in their legal defense. Charley says that “one of our most powerful resources for how to resist this system is to really pull together communities.” They add that this is an important form of resistance because the prison-industrial complex “just repackages the tactics that white supremacy used to colonize Africa and Turtle Island” and “banks on us giving up on keeping in contact with our loved ones, by painting them as bad people, and by creating situations that make it dangerous for us to keep in contact with them.”

Additionally, Charley pointed out that letter writing is a powerful action that can be taken by people who might not necessarily be able to protest in the streets. As a disabled person, Charley notes that it’s “a way that folks with chronic illnesses and disabled folks can get involved in abolition in a way that is really high impact.”

Letter writing cuts into the isolation and brings people closer together through the physical and figurative walls that the prison-industrial complex builds, and in doing so, it helps keep people safer. Imprisoned people who receive no mail or contact from anyone are at risk of being recognized by both corrections officers and other people inside as being vulnerable, because the lack of mail sends a message that no one is coming to advocate for them, says Kszystyniak.

Prison also works to cut people off from information and to create a totalizing social environment where, without contact or affirmation from people outside, imprisoned people can begin to feel that the maze of regulations — and their irregular and punitive application — is just.

For many people on the outside, pen palling can be “a radicalizing engine.” That’s because writers are forced to confront the full humanity and circumstances of the people they write to.

Reece Graham-Bey, my own pen pal of six years who is now formerly incarcerated, explained it this way: “The longer that you were in prison, the more sense it makes. You have a ready explanation [for the injustice you experience] because you’ve had it explained to you. It’s almost like being in a propaganda camp or a retraining camp.”

Charley described the importance of simply “reinforcing reality” in letters. For example, another volunteer with the Writing Warriors program, Stephanie Hammerwold, told Truthout that when the COVID-19 vaccine was released, pen pals in the program filled a critical information gap so that people inside could make an informed choice about their health.

In the case of LGBTQ+ people in prison, letter writing and newsletters can be an essential source of scarce information about queer issues. Similarly, Graham-Bey says information about gender and feminism was extremely rare behind bars, and our letters were an important counterpoint to the misogyny that was rampant, particularly from the guards.

Information doesn’t just go into the prison, however, but also travels out. Letters are a vehicle for people inside to tell the outside world what the inside of the prison is like, especially when there are abuses or problems in the institution. In response to Truthout’s request for interviews, one person from a California women’s prison responded, “Please let the world know how the prison are taking inmates whom are not [COVID] positive to quarantine units and placing them around other inmates whom are positive for their own self motives.”

The bonds that are formed in the pen-palling relationships often lead to advocacy. Anna Bauer, another member of the Knox College group, recently put together a phone zap with her pen pal Strawberry Hampton. Bauer says that “our relationship has just come to be something that’s very meaningful and something that I really appreciate. I definitely feel like our letter-writing practice has definitely gone two ways. I’ve been able to kind of act as a conduit with the outside with her.”

There are plenty of barriers to exchanging letters, however, in whatever format.

There are the hard-to-follow regulations, and the constant surveillance, costs and delays, particularly associated with the for-profit proprietary messaging systems like ConnectNetwork and JPay. These systems work in a similar way to email, but each “page” of the message costs between $.15 and $.44 to send (without attachments, which are an additional page) and must be approved before it is delivered. Other states have eliminated the possibility of physical mail altogether, like the change set to take place in Delaware.

Hammerwold refers to these disruptions as a “JPay delay” because they are so regular, and says that her strategy is to let her pen pals know that if it takes her more than two days to respond, they should assume the delay is institutional. “I hate that that happens, because it erodes trust, and it’s something that’s beyond our control,” she says. “I don’t want that person to think I’ve given up.”

Several people said that messages about the conditions inside prison are often censored. After Strawberry Hampton’s own message to Truthout was blocked, her sister Ebona told Truthout in a phone conversation that the messages that are blocked are ones detailing incidents and especially naming inaction on the part of top officials. Hampton is regularly subjected to racial and heterosexist slurs, has received death threats from corrections officers, and is unable to sign up for classes so she can get “good time” (earned time toward earlier release). This pattern was confirmed as common by other incarcerated people interviewed, as well as by abolitionist organizers on the outside, and several imprisoned people relied on assistance from family members to get in contact or relay information to Truthout for this story because of limitations in the prison’s communication systems.

Letter writing — and any communication to and from prison — exposes both parties to a certain level of surveillance, given that anyone writing in to a prison has to give their first and last name. However, of course, the risk of retaliation is higher for the inside correspondent. Although some communications about activism, including prison abolition, are allowed into prisons without obstacles (and everyone was unequivocal that pen palling is a net positive), interviewees also cited circumstances in which they faced barriers or retaliation.

“If you started to write to me about people who support prisoners, people who support prisoner education, people who support abolition, people who support strategies for different visions of justice, the prison goes on high alert in a way that you probably can’t imagine on the streets,” Graham-Bey says. “You know, the surveillance ups, they start doing rounds on you, they start watching you, they start making you feel uncomfortable, they start going through your cell, you know, and they randomly take you to [segregation] for invented infractions.”

However, activists and loved ones of incarcerated people work daily to overcome these kinds of barriers. “I think it took incredible personal power, to pierce that kind of environment, and to reach into the place where I was at, and I could feel that power, in a sense of a real power, like a real person,” says Graham-Bey.

Forging relationships with each other through the intimate practice of letter writing allows each writer to represent themselves and be known. In letters, strangers learn to connect in honest, human ways to each other, and to do healing work. Hemingway says that his friendship with Rosenberg was transformative, and that his friends inside “could see a difference in me.”

The bonds that are formed in the pen-palling relationships often lead to advocacy.

Ajani Walden, a staff member with Black and Pink and an outside letter writer, says, “We’re talking about freedom, we’re talking about community care, that is what pen palling is. I care about the person I’m writing [to], the person that’s writing cares about me. I mean, it doesn’t really get any simpler than that, right? Because this is really what we’re supposed to be doing. Caring for other people, communicating, mutually destroying systems.” Walden emphasizes the two-way nature of the relationship, saying, “There’s some times where my pen pal writes me a letter and they literally uplifted my day, you know, and I’m on the outside.”

Dude Ramirez, an inside member of the Writing Warriors program, wrote to Truthout, saying that having a pen pal “means someone is taking time to care about you and sharing their time with you.” According to Writing Warriors correspondent Araceli Peña, having a pen pal when you are inside “enables you to be able to vent to others and you’re able to talk with someone about anything and just feel completely comfortable. Sometimes a person is just able to share more with someone through paper and yeah, it’s harder to share face to face sometimes.”

Christopher Naeem Trotter, who is currently serving a de facto life sentence and is Kszystyniak’s pen pal, told Truthout in a letter that, “Without their friendship and support, I probably would had given up on struggling to liberate myself from this belly of the beast, and just accepted that fact that I was going to die inside this belly of the beast which would give these prisoncrats something to celebrate about…. Now every day I am reminded that no matter how dark the days may appear that there is always a ray of light breaking through the crack to shine for you to see that there are still loving and kind people in this world that care about something other than [themselves].”

Letters and relationships are a source of hope for all of the people involved, and this lays a foundation for strong organizing.

According to Graham-Bey, it is often transformative for people in prison to know that there are people outside who are engaged in social movements, and who care about what is happening inside the prison from an abolitionist perspective. He says that letters also serve as tangible, written, coherent arguments that can be returned to again and again to support political education inside.

Anthropologist Orisanmi Burton has written recently that, “The slow and deliberate act of producing, circulating, and consuming letters is a contemplative practice generated from mutual investments of time, as well as emotional and intellectual labor, that has far reaching effects.”

People inside also benefit from knowing who is on the outside that can support them if they decide to engage in organizing work.

Meanwhile, abolitionists on the outside are nourished by the analysis of their comrades inside.

Kszystyniak says that letter writing is a good mechanism for “continued momentum toward abolition,” and highlights that “it’s super important that the folks inside are leading the movement.”

Trotter agrees, saying, “People on the outside must tune into their voices on paper because there are a lot of different ideas floating in these prisons. Sometime those ideas never get outside the prison gates because they have no one to write…. We need organizers on the outside to start reaching inside to prisoners getting prisoners ideas, learning what they are strategizing, because what happens on the inside affects what happens on the outside.”

Policies like the one in Delaware eliminating physical mail are another malicious attempt to further isolate and disappear people from our communities. Cosby, reflecting on a time when she received a letter that smelled like her mother, said, “[Physical] letters don’t weigh much but at the same time they weigh everything.”

The woman confronting the US prison-to-deportation pipeline

aljazeera.com

March 31, 2021Allison Griner  News of her client’s release sent attorney Melanie Kim scrambling to find clothes. Her client hadn’t known freedom since 2003. She needed something to wear when she left detention for the first time in 16 years.

So Kim rushed to a discount department store and grabbed what she hoped would fit: a pair of joggers and a T-shirt.

But when Kim arrived at the Yuba County Jail in Marysville, California, the problem became clear. Kim had only ever seen her client from across glass panels, seated during brief, 30-minute visits. The clothes Kim had picked were far too big for the petite, 4-foot-11.5-inch woman with the long dark hair who now stood free before her.

“In my mind, physically she was much bigger than she actually was,” Kim recalls. It felt like a “mismatch”: how someone as small and unassuming as Ny Nourn could have had such immense effect.

The story of how Nourn, 41, first came to be imprisoned is the story of her emergence as an advocate. As the co-director of the Asian Prisoner Support Committee — and an organiser for the domestic violence advocacy group Survived and Punished — Nourn has rapidly gained a reputation as one of the most high-profile voices in the fight to end what activists in the United States call the “prison-to-deportation pipeline”.

But Nourn doesn’t just speak out about that pipeline. She has lived it herself. And in sharing her story again and again — on panels, in interviews, even for a TEDx Talk — Nourn often finds herself confronting the horrors of her past as she works to educate others about the US criminal justice system.

Activist Ny Nourn is one of the most high-profile voices in the US speaking out against a dual system of punishment that deports freed prisoners upon release [Photo courtesy of Ny Nourn]

‘Born into violence’

Born in 1980 in Khao-I-Dang, a Cambodian refugee camp near the border in Thailand, Nourn remembers sorrow among her earliest memories. At age 18, her mother had fled Cambodia on foot: the genocide there in the late 1970s killed more than 1.7 million people.

She raised Nourn alone in those early years. Nourn’s father had abandoned them both when Nourn was only one.

“I have very vague, sad memories — the majority of the time, being hungry, always needing my mother. She was working in the rice fields,” Nourn says. The world felt so huge at the time. Now, looking back, she considers herself “born into violence” — the trauma of the genocide leading to the trauma that followed.

At age five, Nourn left with her mother for the United States, where they settled first in Florida, then in California. There, in the city of San Diego, her mother married a fellow refugee from Vietnam, a man who worked as a mechanic. He too had suffered: he had been a prisoner of war, Nourn says.

But very quickly, the relationship between Nourn’s mother and stepfather turned violent. They settled in Mira Mesa, a booming suburb dubbed by a local publication in June 1980 as “San Diego’s most wretched neighborhood” with its endless rows of identical houses. Although they were surrounded by military and Filipino families, Nourn remembers they had few resources to process their experiences as refugees. It was isolating.

“If you don’t deal with trauma, it bleeds into your life, your relationships, your family, your work. So that’s essentially what happened to like my parents, right? It bled into their relationships and into how I was raised,” Nourn says matter-of-factly, her eyes downcast behind a pair of round-rimmed glasses.

Even as Nourn’s family grew — with the arrival of her younger brother and sister — Nourn’s mother tried to keep the abuse she endured quiet. Nourn nevertheless caught glimpses of it. She witnessed her mother being beaten and raped.

She even remembers her mother reaching out to family friends for help, but they just told her to work it out. And Nourn’s stepfather would brush her mother aside, saying, “No one’s going to believe you.”

Living in that house felt like “constantly walking on eggshells”. And she grew to resent what she saw as her mother’s weakness.

Nourn even found herself asking, “Why couldn’t she just leave?” It was the same victim-blaming question she too would later face when she found herself trapped in her own abusive relationship.

“I really thought to myself, when I was growing up, that I would never want to be like my mother, right? I looked at her as very weak and docile,” Nourn says, shaking her head ever so slightly at the memory.

As a child, Nourn had learned a saying in Cambodian: “Men are gold. Women are cloth.” Nourn understood it to mean that men had value — and women were only useful in the household.

She started to resent her heritage. She thought, “If this is a culture that really does not value a woman’s worth, their gender, then I don’t want to be part of it.”

Shy and quiet, Nourn had few friends to confide in. Most days, her parents, who expected her to excel academically, made sure she came straight home from school, no dilly-dallying with classmates.

In order not to think about the violence at home, Nourn tried to bury herself in her schoolwork. She still remembers the shame of receiving her first B in eighth grade: her stepfather, who asked to see her report card every quarter, had been upset.

Gradually, she found solace in sports. Nourn took up soccer, tennis and badminton. Even to this day, she continues to run: it feels therapeutic to her.

Nourn’s earliest memories are of the Cambodian refugee camp Khao-I-Dang where she was born in 1980 [Jeff Robbins/AP Photo]

Escaping reality online

But as Nourn neared the end of high school, her courses started to get more challenging. With the violence at home, she struggled to concentrate. It became more and more difficult to care about grades and school and sports.

Nourn’s parents, however, continued to have high hopes for her schooling. Her stepfather hoped to see her in college one day. Personal computers were exploding in popularity in the 1990s, so to help her with her school work, Nourn’s parents set her up with her own system: “one of those big screens with the big modem”.

Through America Online (AOL), the internet access service she used, Nourn discovered instant messaging and chat rooms. She knew that the people she met weren’t always who they said they were — but that was the point: to escape reality. “You could pretend to be anyone you wanted to be.”

There, in those online spaces, Nourn could feel wanted. There, she could feel less alone. “Unfortunately,” she says, “that’s how I met my co-defendant.”

Nourn was only 17 years old when she met Ronald Barker, a married Vietnamese man 17 years her senior, in August 1998. In a recent interview with Al Jazeera, Nourn avoids using his name: she refers to him simply as her “co-defendant” and the man he killed their “victim”.

Over the internet, Barker claimed to be in his mid-20s. But seeing him in person, three days after connecting online, Nourn realised he was much older; at first, she suspected he might even be in his 40s. Barker was sensitive to the age difference, too. He insisted that Nourn keep their relationship a secret, that her parents wouldn’t approve.

Still, Nourn and Barker grew intimate quickly. They started to see each other every day. He told her the things that she longed to hear: that he loved her, that he wanted to marry her. He neglected to mention his pregnant wife and child at home.

“All I knew is that the one thing I wanted was just to break free from my home,” Nourn says. “And to live my life and share it with someone that I felt would love me.”

But the verbal abuse in their relationship began right away. Barker started to dictate what Nourn could wear, what time she should come home from school, and how she spent her free time. Barker had her trapped in a cycle of control and coercion, submission and compliance.

“To be frank, I was used to it,” Nourn says, referencing her upbringing. “I thought I could handle it.” She reassured herself, “As long as he does not put his hands on me, then I’m fine.”

That autumn, shortly after she turned 18, Nourn started working after school as a telemarketer at the dating service Perfect Match. She and her boss David Stevens — a 38-year-old divorcee and former state champion wrestler — became close. They went on a date in December 1998. But according to court documents, as she drove herself home that evening, Nourn noticed a car parked near her house. It was Barker.

Nourn told a defence psychologist that that night was the first time Barker beat and raped her, furious that she had had sex with another man. Calling her “used goods”, Barker demanded that she take him to Stevens’s apartment. Fearing for her life, she complied.

Posing as Nourn’s brother, Barker used Nourn to lure Stevens out for a drive. Then, as they pulled over on the side of a lonely road, Barker pulled out a gun. He grabbed Stevens by the neck. Over Nourn’s pleas of “no, no”, he shot Stevens twice in the head. He lit Stevens’s car on fire with his body still inside.

‘Every day was survival’

Three years later, the murder of David Stevens remained unsolved. And Nourn still lived in fear of Barker’s abuse. He had beaten her. Shot at her. Choked her until she had passed out. And if she tried to leave, he threatened to kill her and her family. Nourn says he forced her to undergo two abortions against her will.

By that point, Nourn had moved in with Barker and his wife: Barker explained her presence by saying she was the daughter of a family friend, in need of a place to stay. Nourn suspects his wife never questioned the arrangement because she was being abused too.

“Every day was survival for me,” Nourn recalls. She had started working at a mortgage company, where her colleagues noticed the bruises on her arms and legs.

“Of course, I would lie and say, ‘Oh, I fell in the shower, bumped into a chair,’” Nourn says. But one of her colleagues pulled her aside and said, “Chairs and showers don’t do that kind of bruising.” She too had been abused. She too knew the signs.

Nourn confided in her coworkers that she feared Barker would kill her. She knew he was capable of it. But her colleagues didn’t understand why. So she told them the story of what happened that December night in 1998. Their response was immediate: “You have to tell the police.”

“They were holding my hand when I was talking to the police at my job,” Nourn recalls. “They encouraged me, they supported me, they helped me make that call.” She remembers being taken to the police station and interrogated for 10 hours.

“I didn’t do anything wrong. I just wanted to seek their help and protection,” Nourn says. The next day, she discovered both she and Barker were each charged with first-degree murder. Prosecutors characterised the homicide as a premeditated attack, with Nourn complicit in luring Stevens to his death.

At age 22, Nourn was given a life sentence without the possibility of parole. In handing down the sentence, San Diego judge Frederic Link asserted that Nourn was even more culpable than Barker himself.

“She took this mad dog and led him to the victim in this case,” Link said, according to media reports. “She let him off the leash.” He described Nourn as a “selfish, cold-blooded killer”. She was sent to the Central California Women’s Facility, the largest women’s prison in the state.

“My background being Southeast Asian and a young woman, coming from a poor family and not educated — I didn’t understand that those were factors, especially my co-defendant being Asian and my victim being white,” Nourn says in hindsight.

Prison, where many of Nourn’s fellow prisoners were domestic violence survivors, was a turning point for Nourn [Courtesy: Creative Commons]

Eventual deportation

But prison proved to be a turning point for Nourn.

All around her, she met women with similar experiences, similar stories, similar backgrounds. Many were domestic violence survivors. It was eye-opening. Even her bunkmate was a survivor, incarcerated after pleading guilty to murdering an abusive boyfriend. An older Black woman, she offered Nourn a shower puff on her first day as a welcoming gift: it had a little animal face sewn into its centre. Nourn still smiles at the thought of it. Having just arrived, Nourn had little of her own, and the smiling shower puff was silly but practical.

Estimates vary as to how many incarcerated women in the US have experienced domestic or sexual violence in their past, but one 1999 study placed the rate as high as 94 percent.

“When you think about who’s locked up, who’s incarcerated, who is serving life for whatever conviction, you can’t imagine an Asian woman, right?” Nourn asks.

She points to stereotypes like the model minority myth, which associates Asians with success, not violence and incarceration.

“You expect someone that’s tatted-up, that has a history of being locked up, being arrested, that used drugs, stuff like that. People that are like gang members. You don’t expect to see women, victims of domestic violence, survivors, being criminalised also.”

In 2006, an appeals court in California reviewed Nourn’s case, citing the fact that her defence failed to investigate the role of “battered women’s syndrome” in justifying her actions on the night of the murder. Pioneered in the 1970s, concepts like “battered women’s syndrome” are increasingly used to explain the psychology of abuse survivors — particularly when they themselves are forced to participate in a crime, like lethal self-defence.

“She was denied her constitutional right to effective assistance of counsel,” the appeals court concluded. Nourn’s sentence was adjusted to a term of 15 years to life. Rather than spend the rest of her life in jail, she could be free by the time she reached her late 30s.

But Nourn hadn’t factored in one thing: her status as a refugee. “Coming to the United States as a permanent resident, with legal status, I thought I had the same rights as any other citizen,” she says with a shrug. It came as a shock to learn she might be deported upon release.

At first, Nourn was in denial. “No, that’s not true,” she insisted to a friend from Thailand she met in prison, who tried to warn her about the possibility of deportation. Nourn hadn’t realised she would be subject to the Criminal Alien Program, a system used by the US Immigration and Customs Enforcement (ICE) to identify and deport non-citizens in the criminal justice system.

As of 2020, 90 percent of individuals targeted by ICE for “enforcement and removal” were non-citizens with criminal convictions or pending charges. In other words, Nourn’s case was not unusual. Anoop Prasad, a senior attorney at San Francisco’s Advancing Justice-Asian Law Caucus, receives a dozen letters from individuals like her every week.

So when Nourn wrote to the law caucus in 2013, it seemed like just another letter in the pile.

Prasad responded with the truth: that her options were limited. There was little he could do to stop her eventual deportation.

“Up to that point, I think only one person who had been sentenced to LWOP [Life Without Parole] had left a California prison alive. And no one with an ICE hold that we knew with LWOP had beat deportation,” Prasad explains.

A new side to immigrant rights

Today’s system of deportation was forged, in part, thanks to a suite of laws passed in 1996, under then-President Bill Clinton. Chief among them was the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, which expanded the number of crimes that made immigrants eligible for deportation.

The law also stripped away the ability of immigration judges to exercise discretion in deportation cases. As Prasad wrote in his letter back to Nourn, the law prohibited judges from considering her history as a child arrival or her status as a refugee. It didn’t even matter that Nourn had never been to Cambodia, the country she would be deported to.

Nourn knew her chances of evading deportation were low, even before she received Prasad’s response confirming as much. But she was determined to persevere.

“If the system figured out a way to put me in here, I knew that there’s a way to get me out,” she says. She credits her fellow prisoners with inspiring her persistence. One woman told her she lives not only for herself and her family but to prove that incarceration is not final — something Nourn took to heart.

So she doubled down and kept on writing. And Prasad soon found himself in a lively correspondence with Nourn. “What struck me was just how persistent Ny was. She was just not willing to accept that deportation was inevitable,” he recalls. “Basically for four years, she was nudging us.”

Even more astounding was the fact that Nourn had started lobbying him to represent other women she met in prison too — women who likewise faced ICE detention.

“Even though I hadn’t yet committed to actually taking this on, Ny was already connecting me with and pushing me to take on representation for other folks,” Prasad says. Her organising efforts left Prasad impressed. Her hope started to give him hope.

Still, Prasad had to contend with public sentiment. Even in the immigrant rights movement, he found there was little sympathy for people with criminal backgrounds.

“For much of the last several decades, the immigrant rights movement has tried to focus on this model of respectability, showing immigrants as being law-abiding, hardworking, English-speaking,” Prasad explains.

“There was no blueprint for an advocacy campaign for someone with a murder conviction and who once had a ‘life without parole’ sentence.”

Nourn hadn’t factored in her status in the US as a refugee and was shocked to learn that she could be deported upon release, in her case, to Cambodia, a country she had never known [Getty Images/John Moore]

Need for protection

For Kham Moua, the director of national policy at the Southeast Asia Resource Action Center (SEARAC), the complexity of Nourn’s case illustrates how even the most serious criminal offenses deserve consideration before deportation. His organisation advocates on behalf of individuals like Nourn to change federal law and protect immigrants from penalties like mandatory detention and deportation.

“What we’re looking for is not to remove accountability from the actions and the mistakes that these folks made, but to give them the sorts of protections that really any other American has — to give them the ability to redeem themselves legally without facing deportation as a consequence,” Moua says.

He argues that the 1996 immigration laws were hastily passed, without proper consideration of their wide-ranging effects. Not only did seemingly minor crimes — like drug possession and shoplifting — become cause for deportation, but the laws were retroactive. Any non-citizen with a criminal record in their past could be vulnerable. And if a family lost its breadwinner to deportation, the entire household risked spiraling into poverty.

“I think politicians forget that the 1996 laws — IIRIRA in particular — was passed as part of an omnibus. That bill wasn’t passed as a standalone bill. There wasn’t a tonne of time to take it into consideration,” Moua explains.

He estimates that more than 17,000 Southeast Asian Americans have been subject to orders of removal since the 1996 laws passed. Moua identifies closely with that community. Like Nourn, he was born in a Thai refugee camp, his parents having fled Laos during the horrors of the Vietnam War. His family joined the 1.2 million Southeast Asian refugees who have resettled in the United States in the decades since.

“For refugees and for Southeast Asians in particular, we’re here and our communities are here because the US supported armed conflicts or was directly involved in our countries,” Moua says. “Many of these folks, for all intents and purposes, are Americans. People like myself have never known any other country.”

Nourn too had never known any home but the United States. And yet, as her date with the parole board loomed nearer, Prasad, her attorney, held little hope that she could escape deportation.

“I didn’t tell her this, but in the back of my mind, I was also coming up with contingency plans for how to support Ny if she did get deported to Cambodia,” he says. Prasad knew conditions in Cambodia could be challenging, especially for a newcomer with few language skills and no support system to rely on. He had seen cases like hers end with clients stranded an ocean away, deported to a country of which they knew very little.

As soon as Nourn was released from prison she was shackled by ICE agents and taken to a detention facility [File: Chris Carlson/AP Photo]

‘Strip people of their humanity’

Nourn’s parole hearing arrived in January 2017. And sure enough, her parole was approved. But as soon as the prison released her from custody, ICE agents were on hand to shackle her and drive her to the Yuba County Jail.

Prasad remembers receiving Nourn’s prison file after her transfer to ICE. It contained what’s called a “body receipt” — the term used for the paperwork used to document the transfer. “It was literally a receipt for her body,” Prasad says with emotion rising in his voice. “I feel like the system does everything it can to strip people of their humanity.”

Nourn’s new surroundings felt even more hopeless than before. In prison, she had routines, friends and the freedom to work, cook and socialise. She had a community. But in ICE detention she felt isolated, awash in an atmosphere of despair. Stuck in a “module” of 18 bunk beds, Nourn watched as her fellow bunkmates faced their deportations with little cause for hope.

Her chances of ever being set free were slim. Her only interactions with the outside world came in 30-minute increments, across glass dividers.

Still, Nourn kept busy. She gave media interviews, called into panel discussions and led campaign calls to map out a strategy for herself and others. Prasad remembers that it was like having an extra member on her defence team.

She was also keeping up correspondences with outside supporters. One of those letters came from a young man named Nate Tan. Born in the San Francisco Bay Area in the early 1990s to survivors of the Cambodian genocide, Tan had grown up struggling to relate to his Cambodian heritage, just as Nourn had.

“Anytime you bring up Cambodian anywhere, the initial thought is always the genocide, in any US context,” Tan says. He also noticed his peers associated Cambodian people with poverty and gangs. “So in that regard, it was hard for me to find any positive attributions of being Cambodian.”

As a child, Tan observed his parents contending with post-traumatic stress. They had night terrors. Poverty forced them to move from neighbourhood to neighbourhood. And when a notice went out to all parents that an active shooter was on campus at Tan’s school, his parents came running.

“My parents were blowing up my phone: ‘Are you safe? Are you safe?’” Tan thinks that, after losing so many loved ones to genocide, their fear of losing their children was all the greater.

Tan’s first brush with the criminal justice system came when he was in middle school. His younger brother, fearing bullies, had brought a knife to campus. That afternoon, the police arrived at Tan’s house, handcuffed his little brother and placed him in a holding cell at the local precinct.

When Tan started volunteering at San Quentin State Prison, he says he probably encountered more Cambodian people than he had met in his life [File: Eric Risberg/AP Photo]

Hope in the Cambodian American community

Early experiences like that inspired Tan to get involved with the Asian Prisoner Support Committee in college. The committee was offering ethnic studies programmes inside prisons like San Quentin State Prison, and Tan signed on. “I’ve probably met more Cambodian people in prison than I have ever,” Tan says emphatically.

He remembers that, on his first day visiting the prison, a man came up to welcome him: “You’re Cambodian? I’m Cambodian!” They grew close, and Tan was excited to learn he was soon due for parole.

But when the parole date came, rather than be released, the man was transferred to ICE detention. “That’s when I knew there was another system ready to inflict another form of violence on my community,” Tan says. “To me, it was a shock.”

Learning about Ny’s story through the activist community, though, gave him hope. It gave him pride. And it came at a time when deportations were at a historic high: in the early years of Donald Trump’s presidency, from 2017 to 2018, deportations of Cambodians alone leapt 279 percent.

Supporters crowded Nourn’s court hearings and celebrated her birthday with a sit-in at the local ICE office. Other incarcerated women were following her lead. Meanwhile, attorney Melanie Kim had joined the team at Advancing Justice-Asian Law Caucus, and together, she and Prasad were exploring novel ways to scuttle Nourn’s deportation.

One strategy involved filing a Convention Against Torture application on Nourn’s behalf, arguing that her life would be endangered by deportation. The other option they pursued was applying for a pardon from California’s governor — a solution that seemed too unlikely to come true.

“When we first started thinking about pardons as an option, pardons were so rare — and pardons to stop deportations were not a thing that really happened,” Prasad says.

Nourn smiles alongside Asian Prisoner Support Committee volunteers and graduates from one of their programmes inside San Quentin State Prison in 2019, two years after she was released [Photo courtesy of Ny Nourn]

‘Freedom on the other side’

But even when her Convention Against Torture application was granted — protecting her from deportation — ICE appealed the decision. And in the interim, it refused to release Nourn.

On November 9, 2017, Prasad entered a California courtroom to argue for Nourn to be released on bond. He was touched to see the courtroom flooded with her supporters: “A lot of lifers, a lot of folks who had spent time in ICE, people who had done time with Ny, were all in the courtroom, which was just really amazing to see.”

When a judge granted Nourn her bond, Prasad was stunned. “I was still a little bit in a state of shock,” he said. “We just needed to post the bond, and she would be out that day.”

That outcome seemed so unlikely, he and Kim hadn’t even thought to prepare clothes for Nourn.

As they drove to Yuba County Jail to pick her up, Nourn was enjoying her first taste of freedom in 16 years. ICE had already released her into the waiting area, where she could see a door to the outside world. There were no chains. No locks. No barriers. Nothing to cage her inside.

“You could just step out, and that’s freedom on the other side,” she recalls. It felt like a novelty to climb into the backseat of a car without chains wrapped around her waist.

Three years later, in 2020, Nourn herself was working as a community advocate at the Advancing Justice-Asian Law Caucus. She was on her way to a workshop when her attorney — now colleague — Prasad surprised her with the news: the governor of California, Democrat Gavin Newsom, had used his executive powers to grant her a full pardon.

Her first reaction was disbelief: “I’m getting what!?” Pardon applications can take years to process, and typically applicants are only notified if the governor chooses to take action.

Shock washed over Nourn, then joy. With the governor’s pardon, Nourn had protection that no court could overturn — a scenario she faced with her Convention Against Torture application. The Convention Against Torture decision also left her vulnerable to deportation to another country outside of Cambodia.

But the pardon had the power to end deportation proceedings, by addressing the original grounds for her removal: her crime. Nourn no longer had to fear deportation for what happened in 1998. She would no longer have to worry about being separated from her family, being forced to leave the only country she had never known.

Crying and shaking, Nourn called her mother and her siblings to share the news. Her phone started buzzing with messages of congratulations from her well-wishers.

After receiving the paper pardon certificate in the mail, Nourn took to Twitter. “Thank you @GavinNewsom,” she wrote, before asking that he please “grant mass clemency for more people to free them from ICE detentions, prisons, & fear of deportation!”

As of 2022, Newsom’s office has granted 112 pardons total, including to Cambodian refugees like Kang Hen and Hay Hov, whose pardons in 2019 were seen as a rebuke to the Trump administration’s immigration policies. Nourn and other advocates continue to fight for a new law that would prevent state and local governments in California from assisting with ICE deportations.

Nourn and Tan, shown at Nourn’s birthday party in October 2021, now co-direct the Asian Prisoner Support Committee together [Photo courtesy of Ny Nourn]

Fighting the deportation machine

Today, Nourn organises on behalf of Survived and Punished, a grassroots group that campaigns to free survivors of domestic violence enmeshed in the criminal justice system. She also got to meet Tan, her former pen pal.

Tan admits to being “a little star-struck” when meeting her in person for the first time. “In the Cambodian community, every so often you hear a story about someone reconnecting with someone they lost during the genocide,” Tan explains. “When I saw Ny, even though I didn’t know Ny before her incarceration, it felt like I was meeting her in a long-lost reunion.”

They now co-direct the Asian Prisoner Support Committee together, which runs prison and re-entry programmes as well as campaigns against deportation. It’s the same organisation that first got Tan volunteering in San Quentin State Prison. Given that the vast majority of prisoners in the United States are men — at a rate of 93.4 percent as of March — Tan says Nourn’s example is all the more powerful for giving voice to a female minority that can feel invisible.

Nourn and Tan (L) at a rally in Los Angeles in March, 2022 to support a new law called the VISION Act, which would prevent state and local governments in California from assisting with ICE deportations, and to stop the ICE transfer of jailed Cambodian-born quadriplegic Vithea Yung [Photo courtesy Ny Nourn]

“I have seen so many incarcerated women fight the deportation machine so fiercely, modeling after what Ny did,” Tan says. “There’s a disproportionate amount of support for men. Women do not nearly get the same support. But Ny has really brought forward this fight for incarcerated women.”

Tan knows it’s easy to hate the system that incarcerates so many. It’s easy to be angry. But as far as he can tell, Nourn hasn’t gotten into advocacy out of spite. She does this work out of love for her community: for the abuse survivors whose lives are derailed by violence. For the immigrants doubly punished through prison and deportation.

“She has this deep love for people who have been in situations like hers,” Tan says.

Though she no longer lives with shackles and bars, Nourn insists she doesn’t feel free — not yet at least. “We’re only free until everyone is free,” she says. That’s why she continues to share her story, working for that day to finally come.

 

PRESS RELEASE ON FCI DUBLIN SEXUAL ABUSE

Over 100 Advocacy Groups Demand Action from U.S. Department Of Justice To End Rampant Sexual Abuse At FCI Dublin.

Dublin CA 

Over one hundred advocacy organizations from across California and the United States have sent a public letter to the U.S. Department of Justice (DOJ) demanding that the agency take immediate steps to address systemic abuse at the Federal Correctional Institute at Dublin (FCI Dublin), a federal women’s prison in Dublin, California.

The public letter comes after federal prosecutors have charged four FCI Dublin staff with sexually abusing people in their custody over a period of several years, and in the wake of a recent investigation by the Associated Press which revealed a deep-seated “culture of abuse” at the facility.

The signatories–which include the California Coalition for Women Prisoners, California Collaborative for Immigrant Justice, Centro Legal de la Raza, California National Organization for Women (NOW), Color of Change, Ella Baker Center for Human Rights, The Sentencing Project, Project South, and Survived and Punished – call on the DOJ to take immediate action to address the root causes of this abuse and support incarcerated survivors. The groups demand that the DOJ:

  • Launch an independent, comprehensive investigation into staff abuse and complicity in abuse, including retaliation against survivors and their supporters;
  •  Create of unmonitored lines of communication for incarcerated people to report staff misconduct to an external, independent organization;
  • Release individuals who have been impacted by staff sexual abuse into the community;
  • Provide accessible, comprehensive medical care, including mental health care, to incarcerated survivors of staff abuse.

Diana Block, a longtime advocate with the California Coalition for Women Prisoners, emphasized: “We know that the arrest, conviction, or incarceration of a handful of bad actors will not bring justice for survivors of abuse at FCI Dublin. The DOJ must take swift, sweeping action to address the institutional culture that allowed staff to perpetrate this abuse. Survivors and community organizations must be involved to break through the closed, toxic culture and conduct of FCI Dublin and the  BOP.”

Deyci Carrillo, an advocate with Centro Legal de la Raza, added: “It is impossible for FCI Dublin and the BOP to correct these egregious violations themselves. This is the third time in three decades that FCI Dublin staff have been publicly accused of sexual abuse. In the last several years, survivors who attempted to report abuse were discouraged or prevented by facility staff, and others who did report faced retaliation. Survivors are extremely vulnerable, and a disproportionate number of those impacted by this abuse are immigrants who live with the threat of deportation after incarceration. The Department of Justice must intervene.”

Advocates are awaiting a response from DOJ officials, and will continue to push for immediate, systemic action.

‘There’s no amount of money that can take away how I felt’: California pays reparations to survivors of state-sanctioned sterilizations

San Francisco Chronicle 

February 11, 2022

By Carolyn Said

It’s been almost 20 years since a botched surgery while she was incarcerated, but Gabby Solano still mourns the bleak consequences of losing an ovary after her other ovary had already been compromised.

“To me, a woman is here to have kids,” she said. “I’m never going to feel that — being pregnant, the baby growing inside of you, having that unconditional love.”

She’s among dozens of California women who underwent sterilization procedures without their consent while they were in state prisons, up until as recently as 2010.

The wrongful prison procedures echo an older, horrific chapter in California history that affected many more people. Impelled by the racist practice known as eugenics, California forcibly sterilized more than 20,000 people from 1909 to 1979. Both men and women, they were residents of state-run institutions for people who were mentally ill, or had intellectual or physical disabilities.

Now California is owning up to its deplorable practices. The current budget includes $4.5 million to be split among survivors of sterilization procedures at state prisons and institutions, plus money for outreach and to place plaques at some sites.

“While we can never fully make amends for what they’ve endured, the state will do all it can to ensure survivors of wrongful sterilization receive compensation,” Gov. Gavin Newsom said in a statement.

The amount survivors receive will depend on how many can be found, but it should be at least $10,000 each and possibly as much as $25,000.

“I don’t think any kind of monetary compensation can make up for what the state has done to these individuals,” said Carly Myers, a staff attorney at the Disability Rights Education & Defense Fund. “It is really tragic all around. But we are appreciative that California is taking a material step forward in acknowledging that what it did was unjust, wrong and has traumatically affected the lives of tens of thousands of people.”

Many of those targeted by the eugenics policies were minorities, gay people, transsexuals, disabled people, poor people and women who were considered promiscuous.

“There was a lot of racism, classism and ableism involved in it,” said Laura Jimenez, executive director of California Latinas for Reproductive Justice, which fought for redress for survivors of forced sterilization. “People of color bore the brunt of this eugenics pseudoscience.”

Poverty was another impetus. “Doctors who did most of these sterilizations would say things like, ‘These women won’t have any more children who will be on welfare,’ ” said Paul Lombardo, a law professor at Georgia University who has studied the history of the eugenics movement.

“That kind of violence and efforts to subjugate and/or disappear whole groups of people is all part of the same philosophy formed by white supremacy and institutionalized systemic racism,” Jimenez said.

Mary Franco was just 13 when she was sterilized in 1934. Her family, Mexican immigrants living in Arcadia, had her committed to nearby Pacific Colony and State Narcotics Hospital in Pomona (Los Angeles County) after a neighbor molested her. They wanted to stop rumors and preserve their own reputations.

“She was labeled ‘feeble-minded due to sex delinquency,’ ” said Stacy Cordova Diaz, Franco’s great niece, who has accumulated a trove of documents about what happened to her Aunt Mary, who died in 1998, a day before her 78th birthday. “This was a young, vibrant girl. She wasn’t ‘feeble-minded’ and I want everyone to know that.”

Diaz uncovered the family secret when she interviewed Franco for a Chicano studies class a few months before her great aunt passed away.

A portrait of Mary Franco holding a baby. Mary Franco, who was sterilized without consent in a California instituation, was never able to have children. Amanda Lopez/Special to The Chronicle

“She revealed to me that she was put into an institution because she was a ‘bad girl’ and she was sterilized and felt no one would ever love her because she couldn’t bear children,” Diaz said. “She blamed herself for disgracing the family. She felt like her life was ruined.”
The two women cried together.
“I was absolutely stunned,” Diaz said. “It was very upsetting. I felt for her and it made me mad. I couldn’t believe this happened. So harsh. So cut-throat.”
Years later, Diaz heard a radio program about California’s eugenics movement and how it targeted people of Hispanic heritage in state-run institutions.
“To hear it was a government program, that threw me for another loop,” she said.
That spurred her to do more research. Now Diaz is working on a book about Franco, the eugenics movement and her own history as a teenage mother.
Franco was released after about a year at the institution. She got married at age 17 or 18. But when her husband found out she couldn’t bear children, “he brought her home and never saw her again,” Diaz said.
Franco lived on her own for the rest of her life, working for about 40 years as a canner at StarKist Tuna in San Pedro.
“She was a dear, grandma-like figure, always spoiling my sister and I,” Diaz said. “She’d always bring little gifts and trinkets for us. She was funny and feisty.”
Diaz applauds the California restitution. (Money is only available to people who were sterilized, not their families.)

Stacy Cordova Diaz looks through photographs of her great aunt Mary Franco, at her home in Azusa, Calif. Her great aunt was sterilized at age 13 in a California institution. Amanda Lopez/Special to The Chronicle

“My aunt would have been right on with this,” she said. “Of course it wouldn’t have taken the pain away, but to know someone acknowledges how wrong this was, she would have appreciated that.”

In delving into her aunt’s life, “I found so many pictures of her with babies,” Diaz said. “She was always taking care of kids for the neighbors. She loved babies; she just loved babies.”

Franco’s surgery and others like it were sanctioned by California law. The 1909 Asexualization Act sought to prevent people considered “unfit” from procreating. It was followed by similar laws that expanded the scope to anyone deemed “abnormal,” a category that included “questionable” sexual behavior or “moral perversions.”

California was one of the first among some 30 states to legally authorize sterilization and became the most prominent practitioner, sterilizing about a third of the 60,000 people targeted nationwide over seven decades.

The idea grew out of eugenics, a pseudo-science focused on improving a population’s genetic composition through “selective breeding.” In the early 20th century, leading scientists, doctors, philanthropists and professionals endorsed the idea of weeding out “undesirables” from future generations.

Even the U.S. Supreme Court backed the concept. “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind,” Supreme Court Justice Oliver Wendell Holmes wrote in an infamous 1927 decision.

Adolf Hitler praised the eugenics movement in California and other U.S. states in his 1925 book “Mein Kempf.” Historians believe it served as a model for his own horrific practices, which included forced sterilization of some 400,000 people after becoming leader of Germany.

“There was clearly back and forth between (eugenics) scientists in America and Germany both before and during Hitler,” said Lombardo, the professor who studies eugenics history.

One of the first measures passed after Hitler came to power in 1933 authorized compulsory sterilization for people considered “genetically diseased.” It borrowed language from laws in California, Indiana and Virginia, while casting an even wider net on who could be sterilized, Lombardo said.

It took until 1979 for California to overturn its sterilization law.

But the practice still occurred at prisons, where doctors made reproductive decisions for women under their care. Some acknowledged that they felt the prisoners didn’t deserve to make reproductive decisions or that their children would be a burden to society. One doctor said the surgeries “were cheaper than welfare,” according to court documents.

The Center for Investigative Reporting, the California State Auditor, and other investigators uncovered dozens of instances of tubal ligations, hysterectomies and oophorectomies (ovary removals) performed without consent up until 2010. The documentary “Belly of the Beast” said there were nearly 1,400 sterilizations of inmates between 1997 and 2013.

Prison sterilizations were prohibited in 2014.

Finding people who will qualify for state reparations may be hard. So much time has passed that survivors of the institutional procedures who are still living now number only a few hundred. Survivors of the prison procedures may not even know what happened to them, as doctors sometimes withheld information.

“We are committed to making sure women have every possible opportunity to have their records reviewed if they suspect this may have happened to them,” said Hafsah Al-Amin, program coordinator at the California Coalition for Women Prisoners. “These doctors who, for far too long, got away with this under auspices of the state, their records are not as clear as is now required.”

Gabby Solano (right), Jessica Mendez (left) and her son Anthony Mendez (center), 5 years old, walk around in Ensenada, Mexico, after having lunch together. Solano had an ovary removed without her consent when she was incarcerated at Central California Women’s Facility in Chowchilla. Upon release, she relocated to Mexico. Ariana Drehsler/Special to The Chronicle

The words of the prison doctor still ring in Solano’s ears: “You’re a lifer anyway; you don’t need that ovary.”

She’d gone in for surgery to remove a cyst from her left ovary. When she woke up, she was informed that her other ovary had been removed. Her despair at the news was rebuffed.

At the time, she was still new at the Central California Women’s Facility in Chowchilla (Madera County).

Solano was incarcerated after her abusive ex-boyfriend coerced her into giving a ride to him and some friends. Her ex and his friends stole a car and killed a pedestrian. Solano, now 49, was sentenced to life without parole with an additional 25 years to life as an accomplice under California’s felony murder rule, which doesn’t require proof of intent or direct involvement in first-degree murder.

A petition seeking commutation of her sentence said her legal counsel was “compromised” and she didn’t understand the consequences of not accepting a plea bargain. The jury was not allowed to hear about her history of domestic violence at the hands of her ex-boyfriend, whom she’d been with on and off since age 15.

“It was lots of physical, mental and emotional abuse,” she said. “He broke my nose twice; he beat me bad.”

During 23 years in prison, Solano focused on rehabilitation, facilitating groups for other prisoners, working as a clerk and taking classes. She earned a GED and two A.A. degrees. In 2018 Gov. Jerry Brown commuted her sentence to 20 years to life, making her eligible for parole.

Solano was paroled last year — but then immediately placed in immigration detention. After a few months, she was deported to Mexico, a country she had left at age 2. (She is suing over the immigration issue.)

She chose Tijuana, hoping its proximity to the border would ease visits from her family in San Bernardino. Now she lives in a studio apartment and works six days a week at a call center, answering questions from American customers about blue jeans.

The surgery cast a shadow on her release from prison. “When I got out (and realized) I’m not going to have kids, it’s something I’ve struggled with,” she said.

A couple of years after her surgery, Solano was subpoenaed to testify in a lawsuit brought by another inmate who also had a procedure that resulted in sterilization. The next time Solano had a medical appointment, the prison doctor yelled at her, saying “How dare you speak against me,” she recalled.

She didn’t know much about California’s reparations until a Chronicle reporter contacted her.

“That money doesn’t change the fact that I (can’t) have kids,” she said. “I don’t care about the money. What they did to me is the issue here.

“It was so dismissive and disrespectful, like I wasn’t a person; I was just an inmate and my feelings didn’t count. There’s no amount of money that can take away how I felt.”

Carolyn Said is a San Francisco Chronicle staff writer. Email: csaid@sfchronicle.com Twitter: @csaid

Protections for Survivors of Domestic Violence Falls Short in New Legislation

Black Voice News

January 23, 2022

By Katie Licari 

On July 4, 2010 Corene De La Cruz, 33, rang the doorbell of the home she once shared with her ex-boyfriend, James Calderon. She carried a comforter, which belonged to his godmother, and a gun.

They had broken up in June, ending an 11-year on-again, off-again abusive relationship. De La Cruz’s mother, Beatrice Bayardo, said, “I would notice a mark on her neck or a black eye, or I would just see markings, and she would always deny it…I think Corene loved him more than she loved herself.”

Bayardo also said Calderon used racial slurs against her daughter during his attacks. Calderon’s family is from Guatemala, but he is U.S.-born. De La Cruz told a court psychologist that his family “looked down on Mexicans” and that he “should’ve never gotten together with a Mexican girl.” 

De La Cruz told her mother that Calderon twice pulled a gun on her and threatened to kill her if she ever left him. During their first breakup in 2002, Calderon waited in front of her parents’ house (where she was living at the time). When De La Cruz arrived home, he beat her in front of the friend she was with and damaged the friend’s car. De La Cruz said she didn’t file charges because she didn’t want him to get in trouble

Corene De La Cruz (left) pictured with her mother, Beatrice Bayardo in 2019 at the California Institute for Women in Corona. This Halloween event, which family members could attend, was one of the last times De La Cruz and Bayardo visited in person. (Courtesy Beatrice Bayardo)

Between five and six in the morning, before going to Calderon’s house on July 4, 2010, De La Cruz wrote a suicide note and multiple goodbye letters to family members. In court, she said that she brought the gun to commit suicide in front of her ex so he could feel the pain she felt at the time. 

What happened after De La Cruz rang the bell was presented in court as a case of he said, she said. Calderon claimed his ex rushed toward him, locked the door and then shot him. De La Cruz said that he knocked her down as he pulled her into the house and the gun went off when she fell. De La Cruz’s defense attorney never introduced evidence which corroborated her version of events, including audio and video of the incident which was recorded by a home security system Calderon had installed after their final breakup. 

De La Cruz waited in county jail for three years before she stood trial for burglary, pre-meditated attempted murder and gun charges. De La Cruz was found guilty of everything except attempted murder. She was sentenced to six years for those crimes. If that was her full sentence, De La Cruz would be free today. Instead, she’s still in prison. Her sentence was extended 15 years by mandatory sentence enhancements.

De La Cruz’s experience is emblematic of how survivors of intimate partner violence who commit trauma-related crimes experience the criminal justice system. 

2010, the year De La Cruz was arrested, was an especially violent year for intimate partner homicides in California. 157 people – 130 women and 27 men – were killed. According to 2010-20 data collected by the California Department of Justice, women were far more likely to be murdered by an intimate partner than men were, even though men accounted for 80% of homicides statewide. 

High Murder Rate in San Bernardino County

Locally, San Bernardino County has seen an uptick in intimate partner violence-related homicides most years since 2010. Fourteen people were killed in 2020, up 75% from the previous year. San Bernardino County’s population is nearly a quarter million lower than neighboring Riverside County, but the intimate partner violence-related murder rate in San Bernardino County was seven times higher in 2020.

People who experience intimate partner violence are far more likely to be murdered by their mate than to pull the trigger themselves. However, these victims face a criminal justice system where an affirmative defense, when a defendant claims they committed a crime due to a mitigating circumstance, isn’t an option. Affirmative defenses, for example, allow human trafficking victims to defend themselves against prostitution charges. 

“There are only two options for survivors in the worst conditions of violence: die or defend yourself and face prison for the rest of your life.” 

Sentence enhancements for violent crimes against intimate partners can mean more time incarcerated. Sentence enhancements add time or conditions to a sentence based on how a crime was committed – like use of a firearm – or the defendant’s criminal history  – like gang affiliation or past felonies. 

New Bill Aims to Help Survivors

California Assembly Bill 124, which went into effect Jan. 1, overhauls the state penal code to address disparities faced by some of the most vulnerable defendants. AB 124, written by Sen. Sydney Kamlager, calls for several reforms.

  • Defendants who have experienced intimate partner violence, sexual violence or human trafficking can use an affirmative defense for all crimes except violent felonies, like assault with a deadly weapon or murder.
  • Prosecutors are required to consider the impact trauma, exploitation and youthfulness (under age 26 at the time the crime was committed) had in the commission of a crime during plea bargaining. 
  • Judges should start at the lower prison term when sentencing a survivor if trauma, age or victimization contributed to the commission of the crime. Judges can still use their discretion to sentence a survivor to the middle or high prison term if the aggravating factors (such as lack of remorse, amount of harm caused to the victim) outweigh the mitigating factors (factors that support leniency, such as youth, ability for criminal reform and mental impairment).
  • Judges are encouraged to consider whether having seen or experienced abuse, trauma, intimate partner violence or human trafficking was a contributing factor in the evaluation of resentencing petitions.
  • Allow survivor to petition the court to vacate convictions and expunge arrests for nonviolent offenses that stemmed from being a victim of intimate partner or sexual violence.

Sen. Kamlager wrote in the bill’s legislative analysis, “AB 124 is an opportunity to correct unjust outcomes of the past and provide full context of the experiences that might impact a person’s actions and use a more humanizing and trauma informed response to criminal adjudication.” 

Kamlager said in an interview that the bill was written with a particular, Sacramento-based survivor in mind. Keiana Aldrich experienced human trafficking and sexual assault as a minor before she was charged for the  robbery of a man who was trying to buy her. Even though she was 17, she was charged as an adult and sentenced to 10 years in prison. 

Protections for violent felonies created by AB 124’s original text – which could have helped Aldrich and De La Cruz –  were scaled back in the Senate. Before her trial, a forensic psychologist examined De La Cruz and concluded she was exhibiting symptoms of a depressive episode. Dr. Nancy Kaser-Boyd said that she displayed “the effects of intimate partner violence and that her plan to commit suicide in front of Calderon was not unusual.” But, Dr. Kaser-Boyd wasn’t called to testify at trial, and her report was only brought into consideration during De La Cruz’s sentencing. 

Under the version of AB 124 that passed, De La Cruz wouldn’t have been able to use the affirmative defense for the attempted murder or first-degree burglary charges, but she could have used it to defend herself against the other charges against her. That may have resulted in a shorter sentence, or even an acquittal, on those charges.

The omission of violent felonies, including murder and attempted murder, from the new law disproportionately impacts women, especially Black women. According to the Family Violence Law Center, an Alameda County-based nonprofit which provides legal assistance for domestic violence survivors, about two-thirds of women who are convicted of killing a romantic partner did so in self defense. In addition, Black women are inordinately represented in California prisons compared to their overall population in the state. And, in San Bernardino County, Black women are the most likely to be murdered by an intimate partner. 

“We see this pattern of survivors of violence, particularly Black women and other women of color, being charged with murder and given the most severe sentences in context of that violence,” said Colby Lenz, a co-founder of Survived and Punished, a national coalition of survivors, advocates, attorneys and scholars who organize to decriminalize efforts to survive domestic violence.

When asked about the senate amendments which made violent felons ineligible for the new reforms, Kamlager said, “It is time to address the sections of our penal code that do focus on violent and serious felony offenses, and work to rectify these sections as well that have become overly used and leveraged by DA’s offices across the state to over incarcerate.”

Lenz said the amendments were “unfortunate” and that the modified AB 124 bill  “excludes survivors who are facing the most severe consequences of violence.  [It] reinforces the idea that there are only two options for survivors in the worst conditions of violence: die or defend yourself and face prison for the rest of your life.” 

Sentence Enhancements Make Justice One-size-fits-all

If AB 124 had existed when De La Cruz was sentenced, she could’ve been released in 2017. But, her sentence enhancement means she can’t be released for at least several more years. (De La Cruz’s petition to remove her violent offender status, which would make her eligible for release as soon as 2025, is currently under review.)

Sentence enhancements remove a judge’s discretion to dismiss charges or reduce sentences which can lead to inequitable outcomes. Lenz said that the state’s 150 sentence enhancements are unevenly applied by race. 

“Corene gets multiple enhancements, including an enhancement tagged as domestic violence,” said Lenz. “They’re able to turn these enhancements around and target the very victims of domestic violence that we’re supposed to be protecting.”

De La Cruz, who has served her entire base sentence, is now in prison entirely on enhancements. Lenz said that she is not alone. “Many survivors, particularly Black survivors that we’re working with in California, are sitting in prison on enhancements alone, based on defending themselves from violence,” said Lenz.

“Many survivors, in particular, Black survivors that we’re working with in California, are sitting in prison on enhancements alone, based on defending themselves from violence.”

A 2011 study published in a criminology journal examined sentence enhancements and mandatory minimums in five states, including California. The research found that both policies increased the number of Black and White men in the prison system. But, Black men were disproportionately impacted by sentence enhancements, particularly drug offenses. Sentencing enhancements enacted between 1982 and 2000 in every state studied are associated with 26 more Black men and 3 additional White men incarcerated per 100,000 people. 

Another 2011 analysis, on sentencing patterns of intimate partner violence-related homicides in California, found that women were less likely to be convicted of killing an intimate partner. However, they face a legal framework inherently stacked against them. Women in heterosexual relationships are more likely to kill their male partner with a gun or knife, a crime which carries weapons-related sentence enhancements. Heterosexual men are more likely to use their physical strength as a weapon. Men usually strangle or beat their partner to death, neither of which carry sentence enhancements.

The disparities in sentencing highlighted by the analysis are clear, but the data studied had major limitations. First, the data was drawn from appellate court system records, a smaller pool of records than trial courts. And, those records don’t include any demographic information beyond gender, like race or sexual orientation. These holes in the data could mask even more inequities.

Black women are disproportionately represented in the state’s prisons and are more likely to be murdered by their partner. And, there are already significant barriers to Black survivors seeking help from the legal system overall. 

Jane Stoever, director of the Domestic Violence Clinic at UC Irvine’s School of Law and the university’s Initiative to End Family Violence, studies the criminalization of survivors in the justice system. According to Stoever, domestic violence homicides and survivor incarceration have increased through prosecutors’ contempt filings and bench warrants since the 1990s. This is when national mandatory arrest policies, which require police to make an arrest if they believe domestic violence is involved, were enacted. This led to abuse victims often serving longer sentences than their abusers. 

“We still see this pattern in survivors of violence – particularly Black women and other women of color being charged with murder – being given the most severe sentences for self-defense in the context of that violence,” said Lenz. 

Lenz explained that, despite reform attempts, she still sees survivors “intensely persecuted when they act in self-defense.” Survivors in Riverside and San Bernardino counties tend to be sentenced severely, she said.

An “Extension” of Violence

In prison, De La Cruz tried to heal from her abuse. She’s participated in vocational programs, helps her fellow inmates with writing assignments and statements for court and she’s currently attending Chaffey College, a San Bernardino-based community college which provides courses for inmates at her prison. 

De La Cruz’s mother describes her prison’s conditions as “inhumane.” She said there’s mold in the showers, infestations of pests and the prison limits the amount of times an inmate can flush the toilet. 

Aminah Elster, a policy coordinator for the California Coalition of Women’s Prisoners, is a previously incarcerated survivor. She said the conditions in De La Cruz’s prison are similar to those she experienced and those in other women’s prisons around the state.

“It is important to note that prisons are an extension of the violent conditions survivors encounter on the outside,” said Elster. In 2018, the most recent year data is available, California reported 940 alleged non-consensual sexual events to the U.S. Department of Justice. These included sexual harassment and misconduct by prison staff, and non-consensual sex acts and abuse by other inmates. 

De La Cruz, writing from prison lockdown, said she is doing everything possible to obtain credits and milestones to decrease her sentence. But, it’s been difficult because of her status as a violent offender. This status, carried by many victims of intimate partner violence, impacts aspects of De La Cruz’s prison experience, including when she is eligible for parole and what career opportunities she is allowed to train for in prison. For example, De La Cruz wants to train to be an inmate firefighter, but she can’t because she’s considered a violent offender.

Bayardo keeps a binder of all her daughter’s accomplishments and certificates in prison. She feels that the prison isn’t taking into account the classes and efforts De La Cruz is making to rehabilitate herself. 

A Fight for Reform…and Freedom

Both Sen. Kamlager, Lenz and Elster agree that AB 124 is a good step toward reform but that there is still work that needs to be done. 

“AB 124 was a good start,” said Elster. “But it needs to be expanded.”

Survived and Punished and the California Coalition for Women Prisoners have petitioned Gov. Newsom to pardon Corene De La Cruz and commute her sentence. Newsom recently granted 24 pardons and 18 commutations but De La Cruz wasn’t among them.  

Editor’s note: The terms “intimate partner violence” and “domestic violence” have purposefully not been used interchangeably in this story, as there are nuanced differences between the two. Although not universally recognized as separate by law enforcement and other entities, intimate partner violence is committed within the confines of a romantic relationship. Domestic violence, however, includes abuse against both adults – significant others or other family members – and children.