She was jailed for losing a pregnancy. Her nightmare could become more common.

theguardian.com 

June 5, 2022

By Sam Levin 

On 4 November 2019, TV stations across California blasted Chelsea Becker’s photo on their news editions. The “search was on” for a “troubled” 25-year-old woman wanted for the “murder of her unborn baby”, news anchors said, warning viewers not to approach if they spotted her but to call the authorities.

The next day, Becker was asleep at the home she was staying in when officers with the Hanford police department arrived.

“The officer had a large automatic weapon pointed at me and a K-9 [dog],” Becker, now 28, recalled in a recent interview. “I walked out and surrendered.”

Two months before, Becker had had a stillbirth at a California hospital, losing a baby boy at eight months pregnant. The King’s county prosecutor in the central valley charged her with “murder of a human fetus”, alleging she had acted with “malice” because she had been struggling with drug addiction and the hospital reported meth in her system.

Becker’s attorneys argued there was no evidence that substance use caused the stillbirth and California law did not allow for this type of prosecution in the first place. Still, she spent 16 months in jail awaiting trial before a judge dismissed the charges.

Becker’s nightmare offers a preview of the kinds of criminal cases that could become commonplace in the US if the supreme court, as expected after the leak of a draft opinion last month, officially overturns Roe v Wade. In the states that outlaw abortion, advocates warn, pregnancy losses more broadly will be treated as potential crimes, including in cases of wanted pregnancies. Even with Roe in effect, women have repeatedly faced arrest and charges for their pregnancy outcomes.

“These prosecutions will escalate at an extremely rapid clip if Roe is reversed,” said Emma Roth, staff attorney with the National Advocates for Pregnant Women (NAPW), a non-profit group that supported Becker in her legal battle. “A lot of people don’t realize that pregnant people are already facing criminalization all across the country, including in blue states like California. All it takes is a rogue district attorney.”

‘Why did the hospital call police?’

Becker grew up in an agricultural region 200 miles north-west of Los Angeles. The area has an unemployment rate twice the California average, and more than 15% of its residents live in poverty. Authorities say it has long been a hub for meth distribution, and access to drug rehabilitation, reproductive healthcare and other services is limited.

Becker had struggled with addiction and at the time of her stillbirth was also battling homelessness, occasionally forced to sleep on a motel stairwell.

On 9 September 2019, she had been preparing for the birth of her fourth child, a baby boy whom she had already named, when her family had to call an ambulance to rush her to the hospital.

She was uncontrollably bleeding when she arrived at the Adventist Health Hanford hospital, a faith-based organization, and roughly two hours later lost the child.

Staff treated her with suspicion, Becker said. Her mother learned before her that the baby had not survived, Becker recalled in an email interview. “I was in shock, physically from the blood loss and mentally from the news,” she said.

She briefly held her baby, she said, and wondered whether he could have survived if the hospital had done an emergency C-section. She also wondered why she received blood transfusions only hours after she had arrived in distress.

The next morning, she said, she discovered that the hospital had left her baby on a table at the other end of the room for hours on end. She also learned that hospital staff had called the police.

“Why the hospital staff called the police to take my baby away is still so troubling. That image of me lying in the hospital bed with my deceased son left on a table, seemingly abandoned, is an image I will never forget,” she said.

‘I suffered alone’

Police records show that hospital staff reported the stillbirth as “suspicious” to police and found Becker tested positive for meth, though her attorneys say she never consented to a drug test.

Later, Becker agreed to meet police at her mother’s house where an officer interrogated her about her drug use. The police recommended she be prosecuted for murder, and weeks later, took her to jail.

Becker was prosecuted by the Kings county district attorney, Keith Fagundes, the only prosecutor in California who has filed charges for a stillbirth in the last three decades. The year before, Fagundes had also filed a murder case against Adora Perez, after she delivered a stillborn baby at the same hospital in Hanford and police also alleged that meth use had caused the loss.

Becker awaited trial in jail while struggling to process her grief. Behind bars, she was unable to receive proper counseling, she said in a recent statement to lawmakers: “I was afraid anything I might have said to any of them would be used against me in court, so I suffered alone.”

While in jail, she lost custody of her son, who was adopted. Her two other children were already in the custody of a relative.

Becker was prosecuted under Section 187 of the California penal code, which defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought”. Lawmakers added “fetus” to the statute in 1970 in response to the case of a man who had attacked a pregnant woman, causing a stillbirth. The law does not apply to an act “consented to by the mother of the fetus”, and the primary author of the legislation, a Republican lawmaker, later testified that the mention of fetus was solely intended for prosecuting “a third party’s willful assault on a pregnant woman”.

But Fagundes, and the police officials who investigated Perez and Becker, have used it to argue that women, in some cases, should be jailed.

Becker’s lawyers argued that she could not legally be prosecuted under Section 187. They also noted that at the time of the stillbirth, Becker had three separate reproductive infections, all of which can cause stillbirth. The pathologist who concluded Becker’s stillbirth was due to “acute methamphetamine toxicity” admitted in court that he was not aware of the infections when he conducted the autopsy and had not reviewed her medical records before his determination.

A judge dismissed the case in May 2021.

Adora Perez, the other woman prosecuted by Fagundes, spent four years behind bars before her case was dismissed earlier this year.

“The DA’s extraordinarily broad and very dangerous interpretation of the statute means that if a woman does any kind of activity that could be considered reckless while she’s pregnant, and she loses her fetus, she’s up for murder,” said Mary McNamara, Perez’s lawyer. “If she works at a dangerous factory while she’s pregnant and loses her child, that’s murder. If she is ill and needs cancer treatment that could harm her fetus, that’s murder.”

‘Women are afraid to seek help’

Although Becker’s case was unusual in California, it is not unique in the US.

The 1973 Roe decision established the constitutional right to abortion. But NAPW has tracked more than 1,700 cases between 1973 and 2020 in which pregnant people have been criminalized often based on the notion of “fetal personhood” – that a fetus is, in effect, a person with rights. That estimate, probably an undercount, includes a wide range of cases in which pregnant people faced arrest, prosecution or other criminal or civil consequences based on some action or behavior that law enforcement claimed caused harm to the fetus.

Pregnant women have been criminalized for falling down stairs; giving birth at home; exposing a fetus to dangerous “fumes”; having HIV; not resting enough during the pregnancy; not getting to a hospital fast enough while in labor; being the victim of a shooting; and self-inducing an abortion.

“Once prosecutors decide they want to punish somebody for ending a pregnancy, they will figure out a way to do so,” said Farah Diaz-Tello, senior counsel and legal director of If/When/How, a reproductive justice group.

Substance use is one of the most common allegations, with mothers facing charges even when there’s no evidence of harm to the fetus and in some instances, even after they have given birth to a healthy baby.

Two physician experts testified that Becker’s arrest was rooted in “medical misinformation” and that the claims that meth use causes stillbirths were unfounded. At least 20% of all pregnancies in the US end in miscarriages and stillbirths, often with unknown causes, the doctors wrote, and if the courts treat stillbirths as potential crimes, it will require a dramatic expansion of the role of law enforcement in pregnancy.

A coalition of major medical associations, public health and reproductive rights groups also filed a brief supporting Becker, noting the research consensus that the threat of prosecutions does not protect pregnancies, but rather endangers them by leading people to avoid care. “It is in no way pro-life or in the interest of the health of a fetus that we criminalize the negative outcomes of pregnancy,” added Jacqueline Goodman, one of Becker’s attorneys.

Becker said women who are addicted and pregnant are afraid to seek help, whether in the form of drug treatment or prenatal care. “Women wonder, ‘How can I fix this on my own without anyone else finding out, and in time before the baby comes?’” Becker said. “And many times, as we have seen, it’s much too difficult a battle to fight alone, and many women are unable to kick their addiction by themselves without professional help.”

The fight to protect others

When Becker’s case was dismissed last year, she was in the middle of completing a drug treatment program. “There was a small part of me that said, ‘I don’t have to be here any more. I can leave and go home, and nothing will happen to me.’ But I knew better than to abandon that commitment,” Becker recalled.

After completing treatment, she enrolled in college and is now working toward a community health worker certificate and public health degree.

She also recently advocated for state legislation meant to explicitly block these kinds of prosecutions.

“I hope that in the future, no woman will ever be prosecuted for losing a pregnancy,” she told legislators. “I was punished for something that could have happened to anybody.”

Brian Johnson, an Adventist Health spokesperson, declined to comment on Becker’s case, but said it was hospital policy to notify the coroner’s office in a stillbirth after 20 weeks, and that it follows reporting requirements of child protective services.

The Hanford police department did not respond to inquiries.

Fagundes, the prosecutor, dismissed the medical associations’ arguments as a “political position”.. He said he could not cite research to support his claims that prosecution was the right approach to addiction, but noted that the women did not use drugs behind bars.

Asked why he was the only DA in the state prosecuting women for stillbirths, he said, “Others are fearful of the liberal media machine, the attorney general and the governor and our legislature.”

He added he could in the future refile cases against Becker and Perez, but said he had no immediate plans to do so. “It really depends on how these two women proceed in life. If they’re successful and sober and don’t harm more children, then they probably deserve some credit for that,” he said.

The woman confronting the US prison-to-deportation pipeline

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.

 

Fourth California federal prison worker charged with sex abuse

Associated Press

January 19, 2022

By Michael R. Sisak and Michael Balsamo 

WASHINGTON (AP) — A fourth worker at a federal women’s prison in California has been charged with sexually abusing an inmate. His arrest comes months after the prison’s warden was arrested on similar charges.

James Theodore Highhouse, a corrections worker and chaplain at FCI Dublin, was charged Tuesday with sexual abuse of a ward, abusive sexual contact and making false statements to investigators.

Prosecutors allege Highhouse engaged in sexual acts with a female inmate on multiple occasions between May 2018 and February 2019.

Highhouse then lied to investigators from the FBI and Justice Department Inspector General’s office when they asked him about the alleged sexual misconduct, prosecutors said. In interviews on Feb. 21, 2019, Highhouse knowingly made false statements denied engaging in sexual acts with the inmate, prosecutors said.

Court records did not list a lawyer for Highhouse and no telephone number for him was listed in an online directory.

Highouse is the latest latest employee of the federal Bureau of Prisons charged with criminal wrongdoing in a prison system that has been rife with corruption and misconduct. The Associated Press reported in November that more than 100 Bureau of Prisons workers have been arrested, convicted or sentenced for crimes since 2019, as the agency turned a blind eye to misconduct allegations.

Highouse worked at FCI Dublin, where actresses Felicity Huffman and Lori Loughlin spent time for their involvement in the college admissions bribery scandal. He is the fourth employee at the prison to be charged in the last several months with sexually abusing inmates.

The warden at FCI Dublin, Ray Garcia, was arrested in September and later indicted on charges he molested an inmate multiple times, scheduled times where he demanded she undress in front of him and amassed a slew of nude photos of her on his government-issued phone. A recycling technician was also arrested on charges he coerced two inmates into sexual activity. In December, a correctional officer was charged with engaging in sexual conduct with an inmate and gave her special privileges and gifts, prosecutors.

Several other workers at the prison are still under investigation.

The Bureau of Prisons has faced a multitude of crises in recent years, including the rampant spread of the coronavirus inside its facilities, dozens of escapes, the deaths of inmates and workers, and critically low staffing levels that have hampered responses to emergencies.

The Justice Department announced earlier this month that the Bureau of Prisons Director Michael Carvajal would be resigning amid increasing scrutiny over his leadership. The agency’s deputy director announced days later that he would also be leaving his position in a few months.

When A Prison Closes – L.A. Times Op-Ed

When a prison closes, the town where it sits has a chance for redemption

L.A. Times Op Ed

January. 21, 2022

By Brian Kaneda

The scheduled deactivation of California Correctional Center has become a hot-button issue for the town of Susanville, sparking anger and a still-pending lawsuit to prevent the prison from closing at all. The fears of residents who have become dependent on prisons for their livelihood have been covered widely in the media, but these stories often erase the voices of millions of Californians – including people currently and formerly incarcerated at CCC – who are demanding these state-funded prisons be permanently shut down. 

Prison closure in California is a complex undertaking. The task has many moving parts, including important questions about labor and infrastructure in communities like Susanville, where prison economies have taken over. Yet the fixation on these concerns continues to obscure why we must close prisons in the first place: prisons are racist institutions that are disastrous to our nation’s public health and overall economic well being.

The evidence is overwhelming. Incarceration is an ongoing humanitarian crisis that disproportionately affects Black, brown and poor communities. The U.S. spends $300 billion on the prison industrial complex annually. There’s also a $1.2 trillion impact from lost earnings, adverse health effects and financial damage to the families of incarcerated people. Mass incarceration, historically inextricable from slavery, hurts everyone in the United States and has shortened our average overall life expectancy by two years. During a global pandemic, sustaining deadly and infectious prisons is a terrible strategy to prop up employment in rural America. 

Closing CCC, a 60-year-old facility requiring $503 million in infrastructure repairs, will save Californians $173 million per year. The nonpartisan Legislative Analyst’s Office calculates that shutting down five of California’s 34 adult prisons would save $1.5 billion per year by 2025. Significant, but only a dent in this year’s whopping $18.6 billion state corrections budget, the clearest indicator of California’s incarceration addiction. Coalitions like Californians United for a Responsible Budget maintain that at least 10 prisons should close over the next five years, achievable through sentencing reforms that increase releases, deep community investment and strong political leadership.

It is true that thousands of people rely on income from working at prisons in California. However, if towns like Susanville cannot survive without a system that criminalizes, cages and harms people, they have an obligation to rethink the structure of their economies. And no, replacing government prisons with private detention centers is not helpful. There are smart public policy solutions that could address some of these communities’ concerns.  

Prison towns should be proactive in demanding more state investment in better jobs, creating new pathways to careers that have a viable future and pay a competitive wage. Prison jobs offer high salaries but are deeply traumatic and lead to negative health outcomes. These are not “good jobs.” However, the troubles of prison guards pale in comparison to the violence inflicted upon those who are locked in prison cages. It’s also no secret that some corrections officers are guilty of perpetuating the toxic culture of prisons.

One smart job creation idea: Susanville, which is in Lassen County, could have been destroyed by the Dixie Fire, one of the largest in California’s history. Climate change is real. Preventing, fighting and recovering from wildfires are more useful jobs than guarding prisons. State governments can both end racist incarceration and engage with stakeholders to serve real community needs.

All They Want For the Holidays Is for Their Loved Ones to Come Home From Prison

TRUTHOUT

December 23, 2021

By Victoria Law   

When she was 8 years old, Bryanna Rose had one item on her Christmas wish list — for her father, Jose Colon, to come home.

Ten years later, 18-year-old Bryanna is still waiting. “What would it mean for him to come home now? It would mean the wish I had asked for would come true. It would make me happy now, it would make my younger self really happy, and it would make us whole as a family,” she told Truthout.

On December 14, Bryanna watched as her mother, Janette Colon, emceed a rally outside the office of New York Gov. Kathy Hochul, calling upon her to grant clemency to Jose and hundreds of others who had transformed their lives while incarcerated.

In many states, including New York, governors have the power to grant clemency as a way of correcting excessive sentences or recognizing a person’s self-rehabilitation during their imprisonment. The president also has the power to grant clemency to those serving federal sentences.

Clemency takes two forms. A pardon, typically granted after imprisonment, expunges the conviction, removing threats of deportation and other barriers to establishing a post-prison life. A commutation reduces a person’s prison sentence, allowing them to appear before the parole board or releasing them altogether. During the COVID-19 pandemic, advocates and family members called upon governors to utilize their clemency powers to release people, particularly those vulnerable to COVID-19.

“I Feel Like I’m Inflating a Balloon”

At age 17, Jose Colon and another teenager decided to break into a Bronx apartment to steal jewelry. During the robbery, Colon shot and killed the two inhabitants. He was sentenced to two consecutive 15-to-life sentences; he must serve at least 30 years before he can appear before the parole board.

Jose and Janette Colon initially met as teenagers at a bowl-a-thon. Then came Colon’s robbery-turned-murder and imprisonment. Janette followed Jose’s case through the news though the two didn’t reconnect for years. When they did, sparks flew and, despite his lengthy sentence, they soon became a couple.

Janette notes that her husband has matured from an impulsive teenager to a mature 40-year-old who has helped parent Bryanna. He also wants to help other young people avoid the mistakes he made, designing a cognitive behavioral therapy course called I.M.O.K. (If Mother Only Knew) to help teens identify trauma and avoid going down similar pathways.

Colon submitted his application for clemency in 2019, four years after then-Gov. Andrew Cuomo announced a new Executive Clemency Bureau which would identify state prisoners who might be worthy of commutation. Thousands applied but, by the time he resigned in 2021, Cuomo had granted commutations to only 41 people. His replacement, Kathy Hochul, has yet to issue any clemencies.

“I try not to think about it because I feel like I’m inflating a balloon and then it’s going to deflate. I try not to think about it and live day by day,” said Janette. While she tries not to get her hopes up, she is working toward not only his release, but that of hundreds of others in prison, advocating with the Release Aging People in Prison campaign to press for commutations as well as for laws expanding parole eligibility.

For 5,200 People Serving Life Without Parole, Clemency Builds Hope

In California, Joseph Navarrete is one of more than 5,200 people serving life without parole. In February 1994, Navarrete, then age 26, shot and killed two people. He was sentenced to life without parole.

Now age 54, Navarrete and his wife Yolanda both state that he is a far different person than he was half a lifetime ago. Without the governor’s intervention, however, he may never have a chance to convince the parole board that he merits a second chance.

Yolanda and Joseph Navarrete, wedding photo. Photo provided by Yolanda Navarrete

In the 1990s, Yolanda told Truthout, Navarrete was addicted to methamphetamine, cocaine, pills and alcohol. He had already endured a lifetime of childhood abuse — first from his biological father and, after his mother fled that relationship and moved from Arizona to California, from his stepfather. By the time he was 14, he was drinking and experimenting with drugs; the latter resulted in his mother kicking him out of the house. He moved in with his older brother, who had been kicked out for drugs the previous year, and was soon using more frequently. To support his habit, he began dealing drugs. He married, then divorced, losing custody of his son.

The couple dated briefly in junior high in the 1980s. In high school, they went their separate ways. “He ran with the sex, drugs, rock n’ roll crowd,” Yolanda recalled. She, on the other hand, wasn’t even allowed to attend afterschool activities.

The two reconnected in 2012 shortly after Yolanda’s divorce. They began corresponding and, that July, on the anniversary of her previous marriage, Yolanda drove to Pelican Bay State Prison to visit him. “When I saw him, all the magnets came back,” she recalled. “It was like there was no time lost.”

Navarrete was no longer the wild child from high school. While in prison, he had stopped using drugs and alcohol, attending and then facilitating Alcoholics Anonymous and Narcotics Anonymous meetings. He had connected with his Apache heritage and now leads the prison’s Native American sweat ceremonies. “I am no longer that person addicted to anger, drugs and alcohol,” Navarrete wrote in a statement from prison. “I am proud to say for the last 25 years I have been leading my life in Sobriety, honesty and integrity.” Outside of prison, Yolanda connected with the California Coalition for Women Prisoners and the Ella Baker Center, both of which work with incarcerated people and their family members on advocacy and legislation. She was paired with Ny Nourn, who had initially been sentenced to life without parole, but later won a resentencing, making her parole-eligible. (Nourn was granted a pardon in 2020, removing the threat of deportation, and is now co-director of the Asian Prisoner Support Committee.) Yolanda met wives of others serving life without parole and learned how to advocate, not just on behalf of Navarrete, but thousands of others serving similar sentences. “A fire was lit within me,” she recalled. “I realized that families’ stories matter. It makes these bills not just black and white; it makes them alive.” She joined the Drop LWOP Coalition and has been advocating not only for her husband, but for the thousands of others sentenced to what she and others call “a living death.”

 

Candlelight vigil outside home of then director of of the California Department of Corrections and Rehabilitation, Ralph Diaz, on August 13, 2020. Photo provided by Yolanda Navarrete.

 

Navarrete filed for commutation in 2018. Brown ultimately granted 281 commutations — 147 of which were to people serving life without parole. Navarrete was not one of them.

Navarrete stands outside the state capitol building in Sacramento, California on August 13, 2020. Photo provided by Yolanda Navarrete.

In 2020, Navarrete filed a one-page recertification with Gov. Gavin Newsom’s office. As of November 2021, Newsom has granted 91 commutations, 29 of which were to people serving life without parole.

In California, people serving life without parole are excluded from recent reforms such as elder parole, a law allowing prisoners aged 50 and over to appear before the parole board after serving 20 years. “Commutation is the only way they’ll be reviewed,” Yolanda said.

“Half of Me Is in There With Him”

On the campaign trail, President Joe Biden voiced his support for marijuana decriminalization. “And I think everyone — anyone who has a record should be let out of jail, their records expunged, be completely zeroed out,” he said during a 2019 presidential debate.

Two years later, people in federal prisons are still waiting for him to fulfill that promise.

Pedro Moreno, Alejandra Lopez, and her child, 2016 visit. Photo provided by Alejandra Lopez.

Pedro Moreno has spent the past 25 years in federal prison. Sentenced to life, clemency may be the only way the 61-year-old can rejoin his family.

“I feel like I’m doing this sentence with my dad. Half of me is in there with him,” Alejandra Moreno Lopez told Truthout.

Alejandra Moreno Lopez was eight when federal officers burst into the family’s Texas home.

The officers, dressed head to toe in black, allowed her mother, Melba, to get dressed and dress her three children. She tied her daughter’s hair into a ponytail — the last one Lopez would wear during her childhood — and told them she’d be back soon. “We waited for her all day,” Lopez told Truthout. Her mother didn’t return for 13 years.

Melba and her husband Pedro were arrested as part of a 79-person federal marijuana sting. Pedro Moreno was charged with transporting thousands of kilos of marijuana from Mexico into the United States. Two years later, in 1998, Moreno pled guilty to conspiracy to launder monetary instruments and operating a continuing illegal enterprise. In return, the government agreed to dismiss the remaining charges and not oppose a sentence reduction.

Before sentencing in federal courts, the probation officer submits a presentence report (PSR), which guides the judge in sentencing. Pedro Moreno’s PSR recommended adding two points for obstruction of justice and no points for accepting responsibility. Those points increased his sentence guideline range from 324 to 405 months (27 to 34.75 years) to life in prison. Four of Moreno’s brothers were also sentenced to life in federal prison.

Twenty-five years after that fateful morning, Pedro Moreno remains in prison. In January 2016, then-President Barack Obama granted clemency to Moreno’s four brothers. Eight months later, he denied Moreno’s application. He remains the last family member imprisoned from that sting. In 2010, Moreno’s wife, Melba, was released from prison. The next month, she saw her daughter graduate from college. “She always said she’d get out to see us and be a mom again,” Lopez recalled. But their time together ended the following year when Melba died after a brain aneurysm.

Alejandra’s mother Melba Moreno in prison, 2004. Photo provided by Alejandra Lopes.

Moreno is held at the federal prison in Atwater, California, nearly 2,000 miles from his family in Texas. To visit, Lopez must drive an hour to the nearest airport, fly to San Francisco, rent a car and then drive two to three hours to Atwater.

The last time she visited was in 2018. She brought her husband as well as their 3-year-old son and 11-month-old granddaughter. They stayed for an extended weekend — Thursday through Monday — to visit several days in a row. But, remarks Lopez, “It’s never a vacation. It’s in the middle of nowhere.”

Unlike other prisons, Atwater does not offer video calling, so Lopez and her family rely on phone calls. She worries that her father will contract severe COVID. At the start of the pandemic, he and other men came down with flu-like symptoms, some so severe that they couldn’t get out of bed. For a time, he lost his voice and couldn’t call.

In December 2020, he tested positive for COVID. “We were afraid he could get very sick,” Lopez said. The previous month, both his sister and brother-in-law contracted COVID and died within days of each other.

Lopez doesn’t understand why her father was denied clemency. “Now [marijuana] is legal in a lot of states. I don’t understand why there are still people in prison over this,” she said. “And [their] families are hurting.”

A Christmas Without the Looming Threat of Prison

Diana Marquez is looking forward to her second Christmas with her family in their El Paso home. She and her three grandsons have already decorated the Christmas tree in their living room. She is planning to cook a turkey and watch the boys open their presents on Christmas morning. She can FaceTime her 92-year-old mother and oldest daughter, both in Nebraska, to wish them a merry Christmas. But the best Christmas gift was learning that she would not be returned to prison.

Diana Marquez, Marquez’s adult children, Marquez’s 92 year old mother. Phot provided by Diana Marquez.

The 65-year-old was released in May 2020 under the Coronavirus AID, Relief and Economic Security (CARES) Act, which prioritized the temporary release of people from federal prison if their age or health made them vulnerable to COVID and whose convictions are classified as nonviolent.

While she is now home with her daughter and grandsons, Marquez remains under home confinement and electronic monitoring. She has permission to leave the house for two hours each morning to walk in the nearby park and to pick her grandchildren up from school every weekday afternoon. Any other movement outside of her daughter’s home requires advanced approval and even then, she may not receive it. She cannot attend church services or spontaneously stop at a store. She cannot travel to see her mother or older children.

Until recently, she lived with the threat of being returned to prison after the pandemic ends. As Truthout previously reported, the Biden administration is upholding a last-minute memo issued by Trump’s Justice Department returning people to prison if their sentences extend beyond the “pandemic emergency period.” Marquez has more than nine years left on her prison sentence.

On December 21, under ongoing pressure from advocates, including formerly incarcerated people, the Justice Department reversed its stance, issuing a new legal opinion that would allow people like Marquez to serve the rest of their sentence at home. “I feel overwhelmed, so excited [and happy,” Marquez told Truthout. “[I’m] having tears of joy to know we don’t have to go back to prison.”

Marquez applied for clemency in 2016 while still in prison; it was denied the following year. In September 2021, she applied again.

“It would be a really big blessing,” she said. Clemency would also allow her to travel to Nebraska and hug her mother. Without clemency, Marquez will remain under the same restrictions until her sentence ends in 2031.

In September 2021, Marquez learned that the Biden administration, which has yet to grant any clemencies, is conducting an expedited clemency screening for people with nonviolent drug convictions on home confinement under the CARES Act. The screening only applies to those who have between 18 and 48 months remaining on their sentence. Marquez, whose release date is March 9, 2031, does not qualify.

That leaves Marquez to wait and hope. “I’m praying and praying for clemency — not just for me, but for all of us, both on home confinement and still in prison,” she said.