Some Prisoners Declared Innocent, But Not Freed

by Maya Schenwar

This article originally appeared in Truthout.

"Defendants who have been declared innocent may languish
in prison indefinitely."

Former Black Panther Albert Woodfox, convicted of murdering
a prison guard with two other inmates, has spent the last 35 years in prison,
most of it in solitary confinement. Last month, Woodfox's conviction was
overturned by a federal judge. However, despite being cleared of charges,
Woodfox remains incarcerated, as the Louisiana attorney general's office
persists in challenging the judge's decision.

After repeated reexaminations of his case and an
intervention by US House Judiciary Committee Chairman John Conyers, who called
Woodfox's continued incarceration a "tragic miscarriage of justice,"
evidence against Woodfox is practically nonexistent. Nevertheless, he remains
embroiled in litigation, and until the prosecutors have had their fill, he will
stay behind bars.

Pam LaBorde, spokeswoman for the Louisiana Department of
Corrections, told Truthout that the attorney general would be appealing
Woodfox's exoneration. She said that she does not know when a trial will take
place, adding, "We're very early in the process."

"He has to remain in prison until the new trial takes
place," LaBorde said.

Woodfox's case brings to light the startling reality that
defendants who have been declared innocent may languish in prison indefinitely,
due to endless litigation or conflicting legal technicalities. An overturned
conviction is often countered by prosecutors with a "stay the
mandate" motion, requiring prisoners to remain incarcerated until appeal.
Due to poor lawyers, influential prosecutors and ever-changing legal statutes,
the motion is often granted.

"Evidence against Woodfox is practically nonexistent.
Nevertheless, he remains embroiled in litigation."

Woodfox's lawyers have called upon the state of Louisiana
to drop its attempts at retrial, arguing that an immediate release is the only
humane option.

"How can Louisiana continue to imprison a 61-year-old
man after a federal judge has ruled that he shouldn't have been convicted in
the first place?" Nick Trenticosta, one of Woodfox's attorneys, told the
San Francisco Bay View in July. "The state needs to move forward. Albert
must be released."

However, according to a spokeswoman for the Louisiana
attorney general's office, a motion for reconsideration has been filed, and the
state could even take the case to the Supreme Court, leaving Woodfox
incarcerated for the foreseeable future.

"I don't think we have a timeline," the attorney
general's spokeswoman told Truthout.

The situation is not atypical, according to Kerry Max Cook,
who spent 22 years on death row for a murder he did not commit. He recently
published the book Chasing Justice, which details his battle to prove
his innocence and gain his freedom. Cook, who was declared innocent in 1999,
cites his own case as an example of post-exoneration incarceration.

"The mandate [for release] had been issued and I still
remained on death row, though I had no more conviction," Cook told
Truthout. "I myself had to petition the state district judge and demand
the Constitution be followed and I be removed from death row. Some lawyers
won't fight for their clients, and the client has to fight for themselves like
I did."

For clients who do not or cannot "fight for
themselves," an open-ended prison sentence may be inevitable, hinging on
the whims of prosecutors and judges.

"Some lawyers won't fight for their clients, and the
client has to fight for themselves."

Another reason prisoners may stay incarcerated when they
should be released: Legal statutes on sentencing change often and quickly, and
sometimes a prisoner's release date is simply computed wrong, according to Rene
Aucoin, a New England journalist who has followed the matter closely.

"Say you were arrested in 1993 and the statutes
mandated that you serve 75 percent of your sentence. Say the statutes were
changed and/or new statutes created so that the law mandates inmates serve 85
percent of their sentence. By the time your release/parole date is near, the
statutes have been changed again, and since you were convicted so long ago and
have been incarcerated through several changes in legal statutes, no one
remembers how the original law worked," Aucoin told Truthout.

When prisoners are not properly represented and are not
advised on sentencing policy, such breaches slip by unnoticed. Cook partially
attributes illegal extended incarceration to "laziness and unconcern"
on the part of judges and the prison system.

In the Woodfox case, judges and defendants alike cited
another culprit: discrimination. Before they were charged with murder, Woodfox
and his two co-defendants - now dubbed the Angola 3, after the Angola
Penitentiary where they were incarcerated - were engaged in rallying other
inmates to participate in nonviolent protests against the prison's segregated
quarters and ingrained racial violence.

Last year, a magistrate judge noted in her findings for
Woodfox's case, "Punishment for crimes committed 35 years ago, for
political beliefs, for religious beliefs, and for leadership qualities are not
legitimate penological interests." Judges' opinions since have
indicated that Woodfox's conviction may well have been prompted by political
and racial discrimination.

In a column for The Guardian UK, Helen Kinsella notes
that 36 years later, that same motivation may well be driving Woodfox's
continued incarceration. She notes that some of the same players may even be
involved.

"The attorney general's second-in-command, John
Sinquefield, who is helping to preside over the decision to continue fighting
the case, is implicated in some of the wrongdoings referred to in the
magistrate's June report," Kinsella writes.

The attorney general's office did not return requests for
comment on Sinquefield's connection to the case by press time.

"In some states, if an inmate is eligible for parole but
has nowhere to ‘parole to,' he or she must remain in prison."

According to Cook, who is gay, discrimination played a
direct role in his own past-due incarceration.

"As a convicted homosexual I always struggled to get
basic human rights in Texas," Cook said, noting that he was unable to use
those civil rights violations to defend himself in court and in his petitions
for release.

A host of other impetuses may result in prisoners staying in
jail past their release dates. For example, in some states, if an inmate is
eligible for parole but has nowhere to "parole to," he or she must
remain in prison.

Illinois mother Carleen Cross is currently experiencing that
phenomenon firsthand. Her son completed his sentence last October, but due to
the nature of his crime and the effect it's had on their family, Cross and her
relatives could not take him in during his parole period. Since there is no
approved public facility in Cross's area that houses sex crime parolees, her
son was denied release.

"We had 48 government-approved beds in the state for
sex offenders and that's been cut to 28, so he won't ever get one of
those," Cross told Truthout.

Therefore, her son is serving out his parole time in prison.
He will not be released until October 2010 - two full years after his intended
release date.

"There is no one to help him at all or even
visit but me," Cross said. "He made the statement to me last week
that he knows what it feels like to be dead."

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