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For Prisoners, Medicaid Waivers Permit Off-Site Care -- And Better Outcomes

For Prisoners, Medicaid Waivers Permit Off-Site Care -- And Better Outcomes

Lidia Lech reached for a ramen noodle container because that’s all she had to contain the green-brown discharge coming out of her vagina.

She planned to show it to a doctor at Baystate Medical Center and ask them if it indicated any danger to her unborn son, Kaiden, whose Caesarian section delivery was scheduled for January 15, 2014.

Incarcerated at the Hampden County Sheriff's Department’s Western Massachusetts Women's Correctional Center ("WCC") in Chicopee, Massachusetts, Lech had been told what she already knew at an intake assessment months earlier: that she was carrying a high-risk pregnancy. Six years earlier, she had lost a baby to a uterine rupture.

It was two days before Christmas and she had spent the months of November and December pleading for medical attention, to be transported to Baystate again. An ultrasound had been conducted at the hospital days on December 18 and doctors told her that her baby was fine. But she didn’t agree. Something was wrong.

To the nurses at WCC, Lech reported all of her symptoms: a list that kept growing and looking like a list of conditions that require immediate attention when a woman is less than 37 weeks pregnant: a rash, itching in her vaginal area, pain, a racing heart, severe headache, changes in eyesight. blurred vision, feeling her son Kaiden kick less often, vaginal bleeding, preterm uterine contractions, and the discharge she stored in the ramen cup. Certainly, that type of discharge wasn’t normal.

'The Nurses Need To Know If This Can Wait 'Til Morning'

Each time, nurses told Lech to lie on her side and drink water -- when they were in the office. That year, Christmas landed on a Wednesday. It would be one of those holidays where the whole week slides into inertia as people take off the Monday before Christmas Eve to round out their weekend or the two days after Christmas to extend a New Year’s vacation.

Over the next several days, Lech would puncture those two weeks of holiday-level staffing by approaching guards — to let her go to the medical office — and nurses when she managed to reach them, and bringing the cup with her whenever she asked to see the medical unit to show them her concerns.

Then they turned up the pressure to keep Lech away. Nurses called her ‘overbearing” and told her she’d make a terrible mother.
On January 1, 2014, during a head count, Lech felt fluid gush between her legs and severe cramping doubled her over. She called for help through the intercom in her cell and a guard responded that she needed to wait until counting was over.

The guard rang back in when the count had cleared, asking:

“How bad are your symptoms? The nurses need to know if this can wait ‘til morning.”

Lech’s cellmate started screaming. Another fifteen minutes later, the clack of the cell door unlocking signaled to Lech that she could now leave and head over to the medical unit. Even though she struggled to walk, no one sent a wheelchair to bring her to the unit. At the unit, she waited another hour, muttering “He’s gone, He’s gone.” Again, nurses refused to send her to Baystate — until they tried to monitor her son’s fetal heartrate and could detect only hers.

Her son Kaiden was stillborn on January 2, 2014. His body was macerated which meant that he had already died, an unknown number of days prior.

Prisons and jails are prisons and jails. Although they’ve been called de facto hospitals as part of the criticism of policies that contribute to mass incarceration, they are not designed to provide medical care, certainly not the care that a high-risk pregnant woman needs.

As much as 40 percent of a corrections budget is for care provided outside the prison or jail according to analysis by the Pew Charitable Trusts and the Vera Institute of Justice.

The only way to access that outside care is for someone at the correctional facility to agree that the detainee needs care that’s not available in the facility; inmates can’t access these resources on their own.

Off-site services supplement on-site care which is delivered through one of four systems: direct model (state and municipality-employed corrections department clinicians provide all or most on-site care); contracted model (clinicians employed by one or more private companies deliver all or most on-site care); state university model (the state’s public medical school or affiliated organization is responsible for all or most on-site care); and the hybrid model (on-site care is delivered by some combination of the other models). States and municipalities vary in the methods and often change them; monitoring the delivery methods of all state prisons and municipal jails is next to impossible.

Depending on the model of on-site care, the role and responsibilities of the person who approves a detainee for off-site care changes.
Medicaid coverage changes the incentives and realities in off-site correctional healthcare. Since the Medicaid Inmate Exclusion Policy (MIEP) was established in 1965, Medicaid has been allowed to cover the costs of inmate inpatient hospitalizations that last more than 24 hours. Jails and prisons can save money if they can arrange for their wards to be treated at local hospitals — if they’re willing to risk the cost of the consult.

Matthew Loflin was arrested for drug possession in Savannah, Georgia around the same time that Lidia Lech lost her son nine states to the north. Symptoms for his cardiomyopathy crept up on the 32-year-old man while he awaited trial in the Chatham County Detention Center. He was coughing, often to the point of blacking out.

Despite the jail doctor’s recommendation, none of the empowered decision-makers at the facility— which contracted with Corizon for care — would let Loflin be seen at the hospital, even though the likelihood that he would be admitted was high. Medicaid would pick up that tab, if he were to reach a hospital. He didn’t, at least not in time. He died in April 2014.

“The for-profit medical provider had no intentions of treating him because cardiology appointments outside of the jail would cut into their profit margin. One of his jailers called his pain and anguish ‘fussy,’” Loflin’s mother Belinda Maley told the Senate Permanent Subcommittee on Investigations in September 2022 when it held a hearing on unreported jail and prison deaths.

Loflin was admitted on an inpatient basis, making his death even more senseless. But not all incarcerated patients are admitted; the decision to admit a patient is entrusted to the hospital staff. So a referring agency takes a risk by sending one of its wards to a specialist or hospital. If the detainee is admitted, then the hospital can submit a bill to the Centers for Medicare and Medicaid and expect reimbursement.

However, if the attending physicians decide not to admit the patient and the patient is there for less than 24 hours, then the jail or prison has incurred a bill. One sheriff of a county in Florida agreed to discuss this matter on the condition of anonymity. He said: “I won’t lie. Whether one of our inmates is sick enough to be admitted is a big factor in our decision to send them to a local hospital for evaluation or treatment. The thing is, neither [I] nor any of my deputies know how sick an inmate really is. But we are mindful that, if they get sent right back to us, we’re going to be paying thousands for that trip.”

And it’s not always the case that local hospitals welcome these patients. Off-site care is wracked with security concerns that usual prison/jail healthcare is not in that it brings someone who is in the physical and legal custody of the government into a setting that is not designed for that custody.

The Bureau of Justice Statistics doesn’t track the site of escapes from correctional custody; the agency only counts the events where someone leaves custody illegally. It should surprise no one that most escapes occur from hospitals or transport to medical appointments that aren’t in the correctional facility. During the past summer, seven people escaped from custody from medical establishments between August and October.
When interests are aligned, as they are in systems where the state university medical system provides care in correctional facilites, Medicaid coverage can improve outcomes for prisoners.
Lynn W. (her last name is being withheld for privacy reasons) was diagnosed with breast cancer while she was incarcerated at York Correctional Institution in Niantic, Connecticut. To receive the chemotherapy she needed, she had to go to the UCONN Medical Center in Farmington every weekday.
She made the 54-mile trip by traveling with the women who were due in court that day. She would wait to board a bus in freezing, predawn temperatures without a coat (not allowed on transport). Corrections officers would drive them, handcuffed and shackled, to the Hartford Police Department. From there, officers from the prison unit at the John Dempsey Hospital (the University of Connecticut’s hospital) would pick her up from the police station and bring her and any other women with appointments at UCONN that day to the hospital.
After these appointments, the same guards would return the women to the Hartford Police Department where they would await all other women who appeared in court that day — and the women who were newly remanded to custody — and, as a group, they would pass the time until the York guards came back, cuffed and shackled them and drove a bus (or two) with all of them back to the prison. Sometimes they didn’t return to York Correctional Institution until 11 p.m. — and Lynn would be woken at 3:30 a.m. the next day to start the process all over again
One day, she told her oncologist she was quitting.
“I don’t want the chemo anymore,” she said.
“Why?” he asked her. “This particular treatment works well with your cancer. I’m hopeful that after a few weeks of this, your cancer will be gone forever. Remission. Why would you stop it now? Is it the side effects?”
“No, it’s the ride. I haven’t slept more than two hours a night since we started. Even if you cure my cancer, I’ll be dead anyway.” She proceeded to explain the process of getting off-site care.
After a quick call from her oncologist, the Centers for Medicare and Medicaid approved Lynn’s inpatient stay. The doctor broke the news to the medical office at the prison.
“She’s not coming back,” he told the nurses in the medical unit. He didn’t mean she would die. He meant she would live, stay at the hospital while she received the full course of treatment. Connecticut is one of three states that use a state university model. Lynn slept even better than she would have in the prison, and was returned to custody.
Lynn is home today, married, and working. Her breast cancer has been in remission since 2011.

Hospitals And Jails Are 'Insurance-Free Zones'

Jails are filled with low-income people who can’t afford to post bond. Two-thirds of people detained in jails report annual incomes under $12,000 prior to arrest. Despite the thoroughness of the indigency of an incarcerated population, in Washington State, jails are required to gather information about the person’s ability to pay for medical care as part of the intake process, including whether the person has insurance. Additionally, at sentencing, courts are authorized to require an individual to repay their medical costs based on their ability to pay.

Ever since January 1, 2014, when the Affordable Care Act required all Americans to have health insurance coverage through the individual mandate and permitted “all qualified individuals” to purchase qualified health plans through their state’s health insurance exchange, inquiry about an individual’s ability to pay their medical costs while incarcerated has become a part of the sentencing process in many jurisdictions.

It’s a futile inquiry; prisons and jails are insurance-free zones. Exchanges don’t permit prisoners to apply for coverage. Even if they apply, secure approval for, and purchase a plan to use during a short term of incarceration, the providers in prisons and jails aren’t in insurance networks. Incarcerated patients not only lack the freedom to choose providers, make appointments, and enter a medical office, they have no way to cover the care they need. They are at the mercy of decision-makers who often have different agendas regarding their health.

That complete lack of insurance coverage shows where correctional healthcare intersects with “legal financial obligations” or LFO’s, the aspects of prosecution and incarceration that prisoners have to pay for themselves. Even the Fines and Fees Justice Center (FFJC), an organization dedicated to stopping the overuse of fines and fees does not know which states would consider medical care an LFO.

'How Can A Medical Debt Become A Jail Debt?'

Very recently, medical debt almost became an LFO.
An infection was all that Robert Lambert had. At home, he would have gone to a local pharmacy and purchased a few items to see what worked. If it got worse, he’d ask friends and family for advice.
But he couldn’t do that. He was in Kittitas County Corrections Center (KCCC) awaiting disposition of his charges. He asked to be seen at “Sick Call,” the medical unit’s office hours; detainees need to wait to be called. They can’t attend at will. Getting to see a provider in KCCC was difficult for Lambert. At the time, the county contracted with Comprehensive HealthCare for a nurse to be on site for three hours every other Thursday, approximately six hours per month, less than one workday, to meet the healthcare needs of around 200 people.

It took so long to get to Sick Call that Lambert’s infection worsened. He was brought to Kittitas Valley Hospital (KVH) every day for days for intravenous antibiotic treatment to kill the infection, the bill for which was $21,152.8. KVH discounted its services by 46 percent, down to $11,422.52. It was a large invoice to be paid, and also likely an unnecessary one if Lambert had received care in a timely fashion.

KCCC officials shoved a stack of receipts (not a detailed medical record) and claimed he owed the jail $11,422.52, the same amount KCCC had paid the hospital. On the day that Lambert was to discharge, the jail added $1398.07 in interest to the bill, making the total owed $12,820.59. He looked at his inmate account, the funds he used to buy commissary.

$0.02, it read.

“Like many other people in jail, I didn’t have a job, I didn’t have savings, I didn’t have any way to even make small payments on that amount they said I owed,” Lambert said. To make matters worse, the jail sent the bill for collection.

“How can a medical debt become a jail debt?” he asked in his grievance. The short answer was that, under Washington law, it can’t. The Revised Code of Washington Section 70.48.130 clearly states that the “governing unit” is responsible for medical debts incurred when someone is in custody. In April 2023, a judge held that Lambert wasn’t obligated to pay the bill but KCCC was.Lambert’s situation might have been prevented if the hospital had admitted him for 24 hours. Under those circumstances, Medicaid would have paid the bill. Representatives for Kittitas Valley Hospital could not comment on this individual case citing medical privacy laws.Allowing Medicaid to cover incarcerated persons’ healthcare is less an issue of payment than it is of policy, a policy that can change the care received by everyone in confinement.
How Private Prison Health Care Rips Off Government (And Why Medicaid Works Better)

How Private Prison Health Care Rips Off Government (And Why Medicaid Works Better)

“For the first time in the history of Jefferson County Sheriff’s [Office], we have coverage ‘round the clock, even on midnights. There [are] licensed RNs, LPNs, and PAs that are taking care of the incarcerated individuals. They are getting the proper care,” said Jefferson County, New York Sheriff Peter Barnett.

The Jefferson County Sheriff’s Office recently contracted with PrimeCare, a private Harrisburg, Pennsylvania-based company that provides healthcare to incarcerated populations.

Barnett described that contract as “the biggest thing that could have happened.”

“I consider this a huge accomplishment for the taxpayers, the incarcerated individuals, and the staff down at the correctional facility,” he continued. The contract with PrimeCare is the largest budget line item for the county in 2024 — $3 million.

“The liability for this medical coverage is huge right now. I look at it as a bigger umbrella for the taxpayers. Let’s face it, we’re either going to pay upfront with PrimeCare, or we’re definitely going to pay in the long run in lawsuits,” the sheriff said. Barnett’s excitement notwithstanding, however, Jefferson County is an example of how detainees’ medical care becomes subpar or gets denied outright.

It’s a cycle that starts with a local sheriff’s budget proving insufficient to meet the healthcare needs of an incarcerated population. Researchers at Western Carolina University found that two-thirds of jail detainees (as opposed to people incarcerated in prisons) meet the criteria for diagnosis with substance use disorder and nearly half present symptoms consistent with a mental illness -- with that illness often causing them harm or even ending their life (suicide is the leading cause of death in jails, according to the Vera Institute of Justice). Such incidents in turn lead to detainees and their families filing suit against the municipality.

The next step in the cycle is the contract. Because private correctional healthcare providers include indemnification clauses in their contracts — that is, they agree to accept liability and pay the sheriff’s legal bills if they become the chosen provider — their services become attractive for reasons other than provision of care.

In exchange for that indemnity, states and municipalities then enter into contracts with these companies. The“risk sharing” model of correctional healthcare — either flat fee contracts like the one in Jefferson County, New York, or capitated contracts where sheriffs pay these contractors a fixed per-person rate — ends up providing even worse care. The further substandard care sets off still another wave of litigation, this time against the healthcare provider and the municipality, as detainees suffer lifelong injuries and families grieve.

This cycle doesn’t benefit many people at all. And it highlights the unique potential of a special Justice Department Medicaid 1115 Waiver demonstration project to render private healthcare companies uncompetitive.

Private Correctional Healthcare Is No Bargain

Privatization of prison health care started in the 1970s. By 2009, approximately 40 percent of correctional health expenditures were paid to private companies. That year, then-Chairman and CEO of Valitas Health Services Richard Miles told the St. Louis Business Journal: “We think the idea of outsourcing this type of service will be an attractive option as states try to cut budgets.”

Budget cutting through risk-sharing models turned out to be less than ideal for detainees, counties, and companies.

The biggest correctional healthcare provider, once named Corizon Health Inc., is now split into two companies named YesCare Corporation and Tehum Care, Inc.. Corizon availed itself of a controversial Texas law that allows a “divisional merger” — sometimes called the “Texas Two-Step” bankruptcy law — to split into two and assign liabilities to one company that files for bankruptcy and keep assets in another that remains solvent. YesCare took off with all the assets and Tehum got saddled with the debts.

Corizon — by any other name it’s still Corizon — used to operate in 27 states, covering about 350,000 of the nation’s incarcerated population. The Southern Poverty Law Center pegged its profits at $1.4 billion in 2016. Corizon used a capitated system where the company was paid per head for an overall population.

To save money, Corizon tried strategies such as cutting medical staff and refusing to refer sick prisoners for outside medical care. These ploys went to extremes; in some facilities, there was no one available to provide care.

Then the substandard care provided by the company caused it to lose 25 contracts. New York City, Arlington, Virginia and Bernalillo County, New Mexico are just a few of the municipal entities that dumped Corizon because its care was either non-existent or so bad that their wards were dying. The company lost statewide contracts in Michigan, Kansas, Missouri, Tennessee, Idaho and Virginia. Now it operates in only 15 states, and has lost 60 percent of its revenue, about $900 million, but it's still the provider for 139 state prisons, local jails, and other facilities.

The number of complaints against the company has risen drastically. In general, these aren’t frivolous claims. Multimillion-dollar judgments aren’t uncommon; last year a man’s family won $6.4 million for Corizon’s failure to treat his delirium tremens as he withdrew from alcohol abuse. Corizon settled many other claims for seven figures.

“At the end of 2021, Defendant Corizon Health, Inc. faced dire financial circumstances. Years of mounting costs, including litigation expenses relating to claims asserted by incarcerated individuals, threatened Corizon Health’s ability to continue as a going concern. Corizon Health was deeply insolvent…,” lawyers for the company argued.

More losses await. In federal courts alone, 326 lawsuits are pending against Corizon, 22 against Tehum, 34 against YesCare; and YesCare incorporated only last year.

Corizon is getting the most attention now because of its bankruptcy filing — and some salacious details like the judge’s romantic involvement with one of the lawyers, and allegations that Tehum’s owners are engaging in bankruptcy fraud.

But private prison healthcare providers in general have been losing business for a while. The State of Florida canceled a contract with Wexford Health Services in 2017. Florida-based Armor Health Management is liquidating its assets because it’s underwater.

Since their bids — and the subsequent human and financial losses that inevitably follow from contracting with them — make these companies less than competitive, they should have folded years ago. But fraud, bid-rigging, and a complete lack of due diligence have kept them afloat artificially.

Health care services provider Health Assurance, LLC paid bribes for years to Mississippi Department of Corrections Commissioner Mike Epps’; Epps and Health Assurance’s owner were both sentenced to federal prison for bribery. Last year the CEO of Wellpath, a Corizon competitor, pleaded guilty to bribing a Norfolk County, Virginia sheriff to get contracts. In a galling move, Corizon tried to indemnify Alabama’s last Commissioner of Corrections, Jefferson Dunn, as a former consultant on a $1.6 billion contract with the state; the indemnification suggests he was on both sides of the negotiation.

Corizon knows the entire process is dirty, so dirty that they’ve been victimized by the corruption themselves. Corizon sued the state of Tennessee when the company found that its financial officer was leaking data to a competitor. When Corizon lost a contract in Missouri, it sued the winning company, Centurion.

And the indemnification promises have been broken. Corizon left the City of St. Louis with a $515,000 tab when the family of 26-year-old DeJuan Brison, a man who hung himself in the city jail, won a judgment for wrongful death. Part of the contract with Corizon required the company to keep adequate insurance and defend and reimburse the city for any lawsuits. The city sued Corizon/YesCare this summer and said Corizon’s “refusal to indemnify the city in the lawsuit was baseless and in bad faith.”

The bad faith is not limited to the Gateway to the West. Corizon/YesCare also won’t indemnify three nurses in a case against itself and Kent County, Michigan, where a man named Wade Jones died of acute intoxication at the Kent County jail. The three nurses are appealing multi-million dollar judgments that were entered against them personally. If they lose that appeal, they will spend their lives paying off the judgments with no assistance from the company that made off with the profits.

At this point, other sheriffs don’t share Sheriff Barnett’s enthusiasm for outsourced care.

"The model doesn't work in Barnstable County," said Sheriff Donna Buckley said when she decided not to renew a contract with the provider Wellpath earlier this year. Instead, the Barnstable County, Massachusetts jail will hire clinicians directly for its facilities on Cape Cod.

"We can not be caught in a situation where we knowingly are unable to provide medical and mental health services and putting people who are sent to us in a worse position upon release," Buckley told Boston news station WBUR last summer. Buckley declined an interview request to explain more.

Sheriff's Support

Medicaid 1115 Waiver Demonstration projects — and ditching private healthcare contracts — have support from sheriffs, which is unusual. For the most part, sheriffs’ offices tend to support more punitive policies. Especially in jurisdictions that are Republican strongholds, such “tough-on-crime” policies tend to win elections. Many of these law enforcement officers are members of the Constitutional Sheriffs and Peace Officers Association, a group whose members believe that “county Sheriffs have the authority and duty to enforce the constitution and to protect their citizens from the overreach of an out-of-control federal government.”

Yet entitlement programs don’t spin the government out of control in these sheriffs’ eyes, mostly because allowing Medicaid to cover inmates’ healthcare will erase their budget woes. They support Medicaid expansion in general because if able-bodied adult males can enroll in the federal healthcare program, jails and prisons can at least try to set up appointments for them when they’re released. People who enroll in Medicaid prior to release from custody are more likely to make appointments, keep appointments, and secure needed medication than those who enroll after release.

As Collin County, Texas Sheriff Jim Skinner — also the chairman of the Government Affairs Committee of the National Sheriff’s Association — explained this to the Texas Legislature in 2018:

“There must be some overlap of benefits/services during periods of incarceration...The documents required for enrollment are frequently unavailable during incarceration and too cumbersome. The delays can also result in the defendant running out of medication before services can be initiated,” Skinner wrote in legislative testimony. But so far Texas has not expanded Medicaid nor has the state applied for a 1115 waiver to cover justice-involved populations.

States that haven’t expanded Medicaid are still allowed to apply for a Justice Involved 1115 Demonstration waiver so sheriffs in the 10 states that haven’t expanded Medicaid aren’t left out of the experiment. However, none of those 10 states have applied for the Medicaid 1115 waiver for their prisons and jails.

Mecklenburg County, North Carolina provides a great example of why sheriffs want Medicaid to be able to cover the healthcare of people in prisons and jails. The state recently expanded Medicaid, and Mecklenburg County has become a more blue area in the largely red state. After Trump was elected in 2016, the county turned leftward in response. The county has successfully worked to reduce incarceration and even implemented some progressive programs. In August 2019, the Mecklenburg County Detention Center became the first jail in North Carolina to have an inpatient psychiatric program.

But Mecklenburg County also reveals the reality of caring for detainees. As the jail population has decreased — the COVID-19 pandemic helped that reduction along — the county has spent more and more on healthcare. The annual cost of healthcare has almost doubled in the past ten years, rising from $4,277 to $7,478 per person in eight years.



“[T]he problem is that the joint federal-state financing of Medicaid and the eligibility standards combine to push a disproportionate share of the health-care costs for persons who are inmates of county jails to counties. Sheriffs have the supervisory burden but practically no funding authority,” wrote Sheriff Jim Skinner in a memo to the author.

Skinner knows: It’s not necessarily that there are more detainees needing care, but that the detainees who come in are sicker than before. From 2025 to 2018, Collin County contracted with Southwest Correctional Medical Group, Inc. (SCMG) to provide care for 1010 detainees at $4793 per detainee; if the jail population rose over 1010 people, Collin County agreed to pay more for each person.

At the time, Skinner faced significant challenges when it came to detainees with mental health conditions. In 2018, the jail had 24 medical beds, four of them designated as mental health beds. On one particular 2018 day, Skinner was housing 27 inmates who qualified for inpatient psychiatric care. The overflow forced Skinner to convert a segregation housing unit into a secondary infirmary. The contract with (SCMG) was fixed, on a per person basis. That the same population needed more care wasn’t something he could fix.

Opposition From Unlikely Places

If the sheriffs are for it, then who can be against a Justice Involved 1115 Demonstration waiver?

The answer to that question is: many people. While their opposition isn’t explicit, many social justice advocates are wary of the waivers. Sometimes this opposition springs from a disability rights perspective, and sometimes it comes from health equity and racial equity perspectives.

“Right now the states are on the hook for the health care costs, so they have a disincentive to take that homeless person who is naked in the public park. They have a disincentive to lock up that person long term because they're going to have to pay the health care costs so they have some incentive to keep that person in the community,” said Mira Edmonds, a Clinical Assistant Professor of Law at the University of Michigan Law School.

“Because the disability rights community and some health equity rights communities are so focused on keeping care in the community that they're very concerned about or opposed to the notion of breaking down the inmate exclusion,” Edmonds explained.

It’s not clear that such a financial calculation by government occurs at the time of arrest. However, evidence that healthcare needs aren’t met in carceral spaces is abundant.

This article was supported by a fellowship from the Commonwealth Fund through the Journalism and Women Symposium (JAWS).

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more. Her columns now appear regularly in The National Memo.

Will Supreme Court's Right-Wing Justices Deprive Prisoners Of Health Care?

Will Supreme Court's Right-Wing Justices Deprive Prisoners Of Health Care?

Admittedly, the high-shine concrete molding that lined the walls and met the floors overly waxed by inmates in the commercial cleaning program lost some of its luster, but workers at Osborn Correctional Institution in Somers, Connecticut were shifting. Only the ones who were deemed essential were going to work in the coming days.

It was March 2020 and an infectious pandemic was on its way inside. Only those men who fed the inmates or whose work could help slow the spread of this novel disease would be working soon: kitchen workers, some cleaners, and the men who ran the laundry and washed the sheets and blankets the men used on their bunks.

Above that dulled concrete, on an aluminum tabletop, rested the shoes of Captain Daniel Perez who was announcing the plan. Osborn’s Deputy Warden Nicole Thibeault stood by him as he explained. Laundry workers would move from E-Block to H-Block, a move no more than 100 yards but still worlds away now that the SARS-CoV-2 virus traveled among men. In E-Block, the laundry workers could shelter and essentially quarantine from each other in their single cells with bolted doors. But in H-Block, the cells were constructed of bars with inches of space between them, open invitations for the new coronavirus to travel.


“Any questions? Thibeault asked after Perez finished his explanation.

Inmate Barry Guess piped up.

“Yes. My name is Barry Guess. I got a question. If I'm already in a single cell setting — no cellie, no possible way to have someone giving me COVID — why move me to a block that's open with a cell that's open, where I can possibly be given COVID or infected?"

Thibeault provided perfunctory answers but warned that if people refused they face disciplinary action and the loss of their single, ostensibly safeguarded cell anyway.

No Personal Protective Equipment (PPE) was provided to the laundry workers; they made masks themselves. As a result, all except one laundry worker contracted COVID — and that one exception wasn’t un-infected. He simply wasn’t tested. The first inmate to die of COVID-19 in Connecticut was a laundry worker at Osborn. Neither Thibault nor Perez let the other workers know that “Doc” — as the other inmates called him — had passed.

Eventually, the Department of Correction transferred the men to Northern Correctional Institution, the state’s death row when the death penalty was still in effect, but the laundry workers weren’t allowed to bathe for thirteen days — because administrators said they feared COVID would be caught in shower mist and spread.

Christoper Nazario, a laundry worker who suffered a heart attack because of his COVID infection and who has since been released, sued Thibeault, arguing that she and the State of Connecticut exposed him and the other laundry workers to an unreasonable risk of serious damage to their health and, in so doing, violated the Eighth Amendment prohibition on cruel and unusual punishment. Seven other laundry workers, including Guess, followed with their own claims. The district court in Connecticut united all eight plaintiffs into one case because their complaint was the same: the Department of Corrections intentionally disregarded their health.


Thibeault responded by moving for summary judgment, arguing that there was no dispute that required a trial. According to Thibeault’s attorneys, the attorneys general for the State of Connecticut, corraling people together so they could contract COVID and die was never cruel nor unusual punishment and even if it were, Thibeault and other state employees can’t be held accountable for it because they work for a government agency.


Last June, United States District Court Judge Vanessa L. Bryant denied Thibeault’s motion for summary judgment, an order that means one thing legally — that the facts and the law are in dispute and need to be resolved through a trial — and another thing factually. Bryant’s decision means that moving prisoners into areas that increased the likelihood that they would contract COVID might be cruel and unusual punishment, that those moves might have been what the courts call deliberate indifference, and that Thibault’s position that prisons and jails can’t be held accountable for these administrative choices isn’t necessarily correct. Bryant’s decision means that the law and standards for care may change with Nazario’s case.


Bryant’s decision wasn’t good news for Thibeault. Unless the state settled the case, a trial would ensue. Witnessed would testify. he state’s COVID response would be on public display. Thirty inmates died of COVID in Connecticut prisons before July 2022 when the state stopped publicly reporting the deaths. It sounds like it isn’t many. With the state’s entire population at its lowest at 8945 in June 2021, 30 deaths create a death rate of three-tenths of a percent. By comparison, a little over one-tenth of a percent of the United States population died of COVID-19. The Connecticut inmate rate of death is twice that.


About a month later, on July 29, 2022, Thibeault filed an interlocutory appeal — an appeal that happens before a case is over — to keep the case from proceeding to trial. Lawyers argued that interlocutory appeal before the Second Circuit Court of Appeals last week in New York and, depending on the outcome in a few months, one side or the other will appeal to the Supreme Court of the United States. And what’s worse is that the nation’s highest court may take it.


Traditionally, the problem of lack of health care, substandard care, or conditions that endanger health was cured by the courts. A 1976 Supreme Court case, Estelle v. Gamble, established the law that the Eighth Amendment requires prisons and jails to provide adequate medical care to people in their custody. Through this decision, Inmates are the only population in the country who have a constitutional right to healthcare.


While litigating claims of health is far from ideal — it’s not fast so there’s really no way to compel correction officials to provide emergency care — it has worked in the past. For example, Santa Clara County, California has faced litigation several times and paid out large settlements. The county has made significant improvements to how it provides medical care to its wards and is now considered an example of quality correctional care.


But litigation’s power to address failures in correctional health care may soon change. Given the current Supreme Court’s willingness to overturn established precedent as evidenced by its complete reversal on Roe v. Wade last year in the Dobbs v. Jackson Women’s Health Center decision — an opinion authored by Justice Samuel Alito — there’s reason to fear that the nation’s highest court may be looking to overturn the precedent established in Estelle v. Gamble once the right case reaches their docket.


The chances that the parties won’t at least knock on the door at the Supreme Court is zero; either the laundry workers or Thibeault will lose at the Second Circuit Court of Appeals and whoever does will try to get the nine justices to side with them before they head back to a New Haven courtroom.

Lynn Hamlet already beat the laundry workers to the Supreme Court on these issues. Hamlet, an elderly man incarcerated at Florida’s Martin Correctional Institution, is diabetic and had a cut on his ankle. He was forced by a correction officer into a shower that had backed up with another inmate’s feces. The guard, Brandon Hoxie, didn’t allow Hamlet any cleaning materials to wash his wound and denied him access to the showers. Hamlet developed an infection that eventually caused him to need emergency surgery on his heart.


Unlike Nazario and Guess’ case, the lower courts in Hamlet’s case held that it was a foregone conclusion that the deputy warden was immune from suit and that it was acceptable to ignore inmate health concerns.


The difference in holdings is a problem. Hamlet’s case is out of the Eleventh Judicial Circuit. Nazario’s case is in the Second Circuit, which means inmate healthcare and qualified immunity for the officials who are deliberately indifferent to an inmate’s needs has become a constitutional issue on which federal circuit courts are split. The Supreme Court likes curing those fissures. It’s cause for them to accept the case, especially if they’re anxious to toy with precedent they don’t like.


The justice who’s shown the most disdain for the right to be free from cruel and unusual punishment is Alito himself, author of the Dobbs opinion. He proved it ten years earlier in his dissent in the case Miller v. Alabama. Alito’s 2012 departure from the majority’s view was that mandatory life-without-parole sentences for youthful offenders shouldn’t be unconstitutional.


Alito didn’t hold back, writing: “[t]he Court long ago abandoned the original meaning of the Eighth Amendment…” Alito quarrels with the idea that what constitutes cruel and unusual punishment should be tied to “evolving standards of decency.” In 2015, in the case of Glossip v. Gross, Alito argued that excruciating pain inflicted from botched injections isn’t inhumane because death itself is inhumane.

Given that the climbing cases are setting up a perfect showdown on Eighth Amendment jurisprudence, it’s entirely possible that the Court will soon gut and overturn Estelle v. Gamble, giving prisoners little to no grounds for relief in the courts when they are denied medical care or abused in ways that compromise their health.


The remedy for any change in precedent may lie in an experimental program that mostly has to do with care when a prisoner is freed.


In January 2023, the Centers for Medicare and Medicaid Services (CMS) approved the first waiver to the Medicaid Inmate Exception Policy (MIEP) in the Social Security Act. The waivers, granted under the Medicaid Reentry Section 1115 Demonstration Opportunity, allow prisons and jails to enroll people who are due to leave custody in the next 90 days in Medicaid and also provide substance abuse treatment while they’re still incarcerated.


Because approximately 80 percent of people leaving prisons and jails have chronic medical, psychiatric, or substance use disorder problems, experts agree that these waivers have the potential to improve the health of people reentering society and prevent them from relapsing or re-offending.
At first glance, it doesn’t appear that such a waiver would have done any good for the laundry workers or Hamlet but that’s a misperception. The irony of inmates being the only population to have constitutionally guaranteed healthcare is that they’re also the only population for whom there isn't a universal, mandatory standard of medical care.


The National Commission on Correctional Health Care (NCCHC) issues standards for care for confined people but compliance with them is voluntary. Malpractice, as it were, doesn’t exist in these facilities, and not because medical care is optimal. Malpractice is a dereliction of professional duty or a failure to exercise an ordinary degree of professional skill; as a practical matter there’s no duty to inmates and the ordinary degree of professional skill can be so low that any care provided meets or beats it. Inmates who are harmed must argue that their civil rights were violated to access the courts; suing for malpractice in tort is next to futile.


Once a waiver is approved for a state and is implemented, the standard of care for jails and prisons becomes Medicaid’s standard of care, according to Dan Mistak, President and Director of Healthcare Initiatives for Justice-Involved Populations at Community Oriented Correctional Health Services, an organization that has long advocated for changes in the MIEP.


In the cases ascending the appellate ladder, the problem becomes less that the deputy warden moved the laundry workers and more that the providers needed to prevent Nazario’s COVID infection from affecting his cardiovascular system and ensure adequate protective gear. Instead of the problem being a guard leaving inmate Hamlet in a dirty and infectious shower, the problem becomes his wound and how it should have not developed in the first case with proper diabetes care. In short, prisoners won’t need to use the Constitution to protect their health because there will be new regulations in place, even if those regulations target those who are rejoining society.


The Medicaid Reentry Section 1115 Demonstration Opportunity waivers have been approved for two states so far: California and Washington; neither state has started their demonstration yet but the way these waivers will import oversight and standards to carceral spaces, they may end up preserving the health of more prisoners than intended.

This article was supported by a fellowship from the Commonwealth Fund through the Journalism and Women Symposium (JAWS).

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more. Her columns now appear regularly in The National Memo.

Yellowhammer File 3: How Alabama Is Murdering Prisoners By Medical Neglect

Yellowhammer File 3: How Alabama Is Murdering Prisoners By Medical Neglect



“45 y/o {African-American Male] with [left] shoulder pain 9/2022, finally obtained above path report today” was the note Wilcotte C. Rahming, MD made in inmate Antonio “Tony” Smith’s chart at Kirby Correctional Facility in Mt. Meigs, Alabama outside of Montgomery.

The date of the note was March 16, 2023, approximately six months after Smith alerted medical practitioners that something was wrong, that he was experiencing pain in his arm and shoulders. Doctors found later that Smith has non-small-cell lung cancer. On May 24, 2023, Smith’s medical chart included this update on his malignancy: “Advanced, recurrent or metastatic.”

“I had been complaining about my shoulders and my arms a long time ago. It took them almost seven months to start my treatment,” Smith said. Still, his medical records are replete with recommendations from outside providers and slim on actions by doctors within the prison system.

Antonio "Tony" Smith. Photo credit: Travella Casey

The Alabama Department of Corrections (ADOC) insists that Smith receive only chemotherapy that is very debilitating instead of the radiation recommended by Daniel Sufficool, MD, a radiation oncologist with Alabama Cancer Care, a treatment center that isn’t affiliated with the Department of Corrections but examined Smith earlier this year. The chemotherapy-only protocol has left Smith in pain, unable to sleep and treated with opioids that cause significant gastrointestinal distress. It’s also not working, Smith learned on June 27.

Right now, the ADOC won’t even consider releasing him so he can receive the fully ordered course of treatment. ADOC Commissioner John Q. Hamm admitted as much — on the same day Smith found out that his current treatment was failing — at the Alabama Legislature’s Joint Committee on Prison Oversight’s hearing: “That individual is terminally ill…He was still very capable of committing crime.”

Hamm forgets that anyone is capable of committing a crime and that ADOC itself had certified him as low risk. Hamm’s department sent Smith to Red Eagle Community Work Center, sometimes known as an Honor Camp, where he was allowed to work in the community because his behavior record is exemplary. He’s at Kilby Correctional Facility now solely for medical treatment. Smith lost freedom simply because he is ill.

Smith is caught at the crossroads of two policies that inflict unique harm on people caught in Alabama’s criminal legal system: first, the renewed reliance on what is essentially the same healthcare company that has been found liable in a number of prisoner deaths in other states and second, illegal changes to the Board of Pardons and Paroles.

If Hollywood writers were working right now, they’d say the narrative of health care and supervised release was over the top for the average audience. Yet, in Alabama, it’s reality.

Last year, the ADOC announced a 1.2 billion contract with YesCare, which was formerly known as Corizon Health, and then abruptly and inexplicably withdrew from it. The state legislature paused the closing on the contract until they were satisfied YesCare’s bid — far from the lowest offered — wasn’t influenced by inside actors, namely a a now-former member of YesCare’s Board of Advisors who is also the lead attorney defending the ADOC in civil actions that include claims of deliberate indifference.

At one time, this attorney, William (Bill) Lunsford, now a partner at the firm Butler Snow, had one fiduciary duty to YesCare and another continuing duty to make sure that the ADOC not be held liable for contracting with them. The two obligations are incompatible with healthy inmates. Lunsford is denial of care personified.

How Lunsford procured this power is another almost-too-nuts-to-believe tale. Last spring, Attorney General Steve Marshall stripped all the ADOC’s in-house counsel of their Deputy Attorney General designations thus precluding them from representing the department in litigation. That means that all defense litigation, including the overwhelming task of defending the ADOC in a lawsuit filed in 2020 by the Department of Justice under the Civil Rights of Institutionalized Persons Act or CRIPA, lands in Lunsford’s lap, along with any claims against YesCare, a company he once advised.

YesCare is just a rebrand of the same company that the state dumped years ago because its care was so deficient that it mired the ADOC and its cast off company, Corizon, in litigation. YesCare is known to ignore patients who might have cancer.

The Southern Poverty Law Center (SPLC) and the Alabama Disabilities Advocacy Program (ADAP) issued a report in June 2014 titled “Cruel Confinement: Abuse, Discrimination and Death Within Alabama's Prisons”; within the two organizations concluded that “[n]umerous prisoners have complained of symptoms for months without anyone addressing their concerns, only to be diagnosed with advanced stage cancer that is terminal by the time it is diagnosed.”

The SPLC and ADAP filed a class action suit against the Alabama corrections department, including claims that prisoners’ mental health needs were so severely neglected that it violated their constitutional and civil rights. This suit culminated in a court order issued by United States District Court for the Middle District of Alabama Judge Myron H. Thompson in 2017 to bring care up to standards that don’t violate the Eighth Amendment. The litigation continues to this day — June 2023 — to get ADOC to comply.

To be clear, not all blame can be laid at YesCare/Corizon’s feet. Neither Corizon nor YesCare has provided care since 2018; Wexford Health Sources Inc. took over back then — and earned $842,339,355 in approximately five years — and were in place for Smith’s delayed diagnosis.

But the staff remained the same and that’s a problem, too. According to a nurse who worked alongside Dr. Rahming at Kilby Correctional Facility while Wexford Health provided care, (we are withholding her name) even the medical charts aren’t accurate.
“Whatever Dr. Rahming said for them to put down on the paper... That's what they put down. They don't put down the actual findings or actual facts when they know that something is wrong” she said in an interview.

Wexford Health’s interregnum between Corizon/YesCare’s oppressive reign shows that it’s the contract enforcement that is the problem in Alabama and that duty belongs exclusively to the executive branch of state government.

Other men incarcerated in Alabama have either developed cancer or watched pre-existing diagnoses decimate their bodies as they go untreated.

His demands for prostate-specific antigen testing failed for years and now 65 year-old Billy Mitchell, confined at St. Clair Correctional Facility in Springville, just received a diagnosis of prostate cancer that uprooted him from the lower-security Childersburg Work Release Center.

Another, Allen Jacob Hebert, incarcerated at Ventress Correctional Facility in Clayton, Alabama, says he was diagnosed about four years ago with Stage 2 “thoracic lymphatic” cancer. Given recent extreme weight loss, Jacob believes it has advanced to at least Stage 3 but reports that medical personnel have advised him that they won’t do anything about it until it reaches Stage 4.

Allen Jacob Hebert.Photo credit: Bernard Jemison.

Nolan Williams, another man in the same prison, carries a burgeoning growth on his back, a golf ball that’s graduated to tennis ball size. He fears it’s cancer. Doctors have yet to order a biopsy for it.

Nolan Williams.Photo Credit: Bernard Jemison.

Nolan Williams' back.Photo Credit: Bernard Jemison.

YesCare declined to comment or answer questions about its standards and practices.

Parole is a natural safety valve for this negligence. Free to seek and receive treatment as needed, men released from prison have a chance to get at least traditional, if not optimal, care.

But Alabama Gov. Kay Ivey’s grip on the Board of Pardons and Paroles prevents that. The Board denied Smith’s bid for supervised release last year despite his record of laudable behavior and then the ADOC denied his application for medical furlough, a different method of release but the Board still plays a hand in it by deciding whether to request medical records or not.

Less than six months into her first term, Ivey signed into law HB 380, a bill passed by the Alabama legislature that ceded the control over the Board of Pardons and Paroles to the governor. Ivey alone gets to choose who sits on the Board after consulting with her inner circle of advisors. She’s set up a situation where she can install the people who will do exactly what she wants.

Denying parole to deserving applicants isn’t just an expression of Ivey’s iron-cold callousness toward the state’s wards. HB 380 is entirely unconstitutional. Ever since 1940, Amendment 38 to the state constitution ensures that only the legislature governs how pardons and paroles are doled out.

Yet upon Ivey’s arrival at the governor’s mansion, state lawmakers blatantly overrode that statute — in the House of Representatives the vote was 73 to 27 and in the Senate it was 25 to 5 — and gave up this power to the governor. The legislature lacked the authority to do this. Alabama voters would have had to vote again to amend the state constitution and vest this power in Ivey, but they haven’t.

Smith is challenging the constitutionality of HB 380 and he’s not the first to do so. There's a small indication in his appellate record of the state's interest in keeping him incarcerated. The state's brief requests the Court of Criminal Appeals issue a written decision — it hasn't in the past — to stop future litigation on this issue. No appellate party asks for a written opinion unless they're convinced they are in a favorable forum. The state's attorneys think they're going to win this one — and releasing Smith on medical furlough would make this allegedly guaranteed win go away. The issue would become moot.

Local and regional coverage of Smith’s predicament declares “Convicted Dothan killer denied release after cancer diagnosis” as if that tells the entire story. According to his sister, Travella Casey, Smith never interacted with law enforcement prior to his arrest for the death of his girlfriend, LaKendra Smith.

Smith sits at another unfortunate intersection: a failure of the educational system to teach people how to diffuse domestic disputes without violence and the National Rifle Association’s pandering to Black men’s fear of law enforcement by expanding access to firearms.

What Smith might have done to become confined is the wrong question to ask, especially for the law and order crowd. The rule of law requires that people who we hold accountable don’t get killed themselves through negligence or hatred. The Eighth Amendment to the Constitution of the United States enshrines this. That’s the law.

The proper questions are whether the Alabama appellate court system will allow Smith — and potentially others — to perish without getting the prescribed treatment because of an unconstitutional statute and whether Ivey, Marshall, Hamm and Lunsford understand that their actions are tantamount to homicide, too.

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more. Her columns now appear regularly in The National Memo.

Yellowhammer File 2: How Skeleton Staffing Makes Alabama Prisons Lethal

Yellowhammer File 2: How Skeleton Staffing Makes Alabama Prisons Lethal


Stephone Lvon Marshall died on May 16, 2023 at Elmore Correctional Facility in Elmore, Alabama. He was killed, stabbed in the neck. Marshall’s murder might have been prevented. It’s unclear whether anyone will ever know since the Alabama Department of Corrections (ADOC) isn’t being truthful about his death.

According to eyewitness Eddie Ward, Marshall and his aggressor engaged in four to five separate standoffs, one lasting about 30 minutes, the day before the murder. Marshall was armed with a broken mop stick and the other man held a knife. The guard on duty witnessed these conflicts and did nothing to break them up or separate them.

“If an officer had stepped in on any of these occasions, the circumstances would have been different. The outcome would have been different,” Ward said.

Eddie Ward

ADOC told the Montgomery Advertiser that Marshall “was found by corrections officers with injuries” and “was taken to the prison’s health care unit for emergency treatment.”

Those statements are not entirely true.

According to Ward, Marshall wasn’t found. After Marshall was stabbed, he went to a door to try to get out of the unit to get help. But no officer was on that side of the dorm at that point. Instead, said Ward, he was chatting with a female officer on the other side of the dorm.

The men in the dorm beat on “the cube” (it’s like a station with a window within a prison housing unit) until a guard came back. That officer opened the door for Marshall who stumbled out to another area, where nurses had been summoned by radio. One of the nurses fell trying to address his wounds.

Ward says there was a delay in getting Marshall substantive medical attention because keys to a transport van couldn’t be found.
When questioned about the missing van keys, the Alabama Department of Corrections issued a standard reply:

“The ADOC Law Enforcement Services Division is thoroughly investigating the death of inmate Stephone Lvon Marshall. The agency cannot comment about ongoing investigations.”

But the department continued:

“However, we can confirm that an officer was present in the dorm at the time of the incident and there was no issue with finding van keys.”

There was in fact such an issue with keys that Marshall was loaded into a guard’s personal vehicle and driven to a helicopter which took off and then landed in the same spot because Marshall had already died.

It bears pointing out that the department did, in fact, comment on an ongoing investigation by saying that there was no issue with van keys. But that official comment is suspect; Ward and other witnesses did tell investigators about the missing keyring. This evidence should appear in reports. As the investigation closes, it will be important to note what’s included, if anyone ever gets to see a final report.

Moreover, in its statement, ADOC admitted that the unit was understaffed. Having one officer in C-1 Dorm at Elmore is patently inadequate, even when he’s in the dorm. That building houses 198 men.

For comparison, the Department of Justice’s Bureau of Justice Statistics found that the average ratio of inmates to guards in state prisons was 4.9 to 1. In 2020, the federal Bureau of Prisons considered a ratio higher than 15 to 1 to be a staffing crisis. The ratio in that dorm on May 16, was thirteen times higher than numbers that alarm federal officials.

A number of sources who are confined at Elmore have told me there’s no medical office or resources at the prison, not even an infirmary. The ADOC has declined to comment on the existence of medical resources at that particular facility. Because Elmore Correctional Facility was once known as the Staton Annex, it uses the Staton Correctional Facility’s medical resources which are approximately a mile down the road.

The problem is that four people have died at Elmore in 2023 alone. That’s why the transport van’s availability is key here. Providing medical care for anyone in Elmore requires a car or van trip.

Ward himself was stabbed on April 12, 2023. A female officer witnessed the attack and shouted “stop it!” several times but didn’t use her pepper spray until Ward successfully fought off his attacker and then she sprayed both Ward and the man who cut him. He waited 20 minutes before they transported him to Jackson Hospital in Montgomery.

No word on where the car keys were that day.

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more. Her columns now appear regularly in The National Memo.

Yellowhammer File 1: How Alabama's Vindictive 'Discipline' Mocks Justice

Yellowhammer File 1: How Alabama's Vindictive 'Discipline' Mocks Justice


William Phelps has done everything right since he was incarcerated in 2019. He’s a GED tutor. He’s taught multiple classes in prison like personal finance.

“It’s not like I’ve just been in here marking time, doing drugs. That’s not my scene and I don’t do that,” Phelps said.

Trouble arose when Phelps wore khaki shorts. He’s allowed to wear them. Indeed they’re part of the uniform. But these shorts were from the outside. “Free world clothing” is what authorities called it, shorts that any one else might have worn to garden or conduct a Zoom meeting. Even though they matched what the state of Alabama issues to men, these weren’t actually issued to him by the state.

Other men around him wear black shorts, blue shorts, clothing that doesn’t even attempt to match the state uniform. Still, an officer issued him a disciplinary report for low-level contraband for the shorts and some medication that belonged to him — Vitamin B — that someone had pulled the name label from.

On May 4, 2023, a hearing officer revoked 1080 days or 2.95 years of Phelps’ earned good time — Alabama calls it Correctional Incentive Time but it’s time earned off his sentence for good behavior — for the shorts.

“It’s like receiving an entirely new prison sentence,” Phelps said.

Phelps' disciplinary dustup happened during a sea change in how Alabama handles misconduct. Last year, a man named Austin Hall allegedly shot and killed a Bibb County, Alabama sheriff’s deputy after he had been released from custody. Because Alabama Department of Corrections (ADOC) had failed to claw back 2000 days of Hall’s earned good time for an escape attempt from a work release program, state officials blamed the incentive program for Hall’s alleged mistake — Alabama Attorney General Steve Marshall issued a statement assailing Alabama’s good time law, rather than the state’s own failure to rehabilitate him.

After that, changes came to the disciplinary system within Alabama prisons. First, just this January, ADOC updated its disciplinary Administrative Regulation for the first time in 20 years. To give the new rules special force and gild the disciplinary lily, Gov. Kay Ivey signed Executive Order 725 for the regulations’ implementation.

Then good time policies underwent legislative change.

Good time isn’t for everyone in Alabama’s prisons. In fact, it’s for very few — about 10 percent of Alabama’s approximately 26,000 confined souls are eligible — and even then the state is pretty picky about who gets it. The state divides eligible inmates into three classes. At one time, Class I inmates (the lowest risk calculation) could reduce their sentences by 75 days for every 30 days served. Class II inmates could shave 40 days for 30 days served and, for Class III, 20 days for 30 days served.

Now, because of the new law, prisoners earn less than half of what they would have before this year. For Phelps to earn back the 1080 days, it will take him 36 months rather than 14 months.

According to the updated regulation, it’s clear that Phelps could have lost “at least one day” of his good time for the disciplinary report; his maximum penalty should have been 30 days lost. The rules are also explicit about losing 1080 days; it’s reserved for high level violations and Phelps wasn’t even accused of that level of misconduct. And, because of the new law, now it’s even harder for Phelps to earn that back.

It looks like a case of picayune punitivity but lasting consequences await people who aren’t even incarcerated.
“You’re literally dramatically changing not only my life but my family’s life. I have a family, a daughter [who’s] waiting on me.” Phelps could be home as soon as November if his good time were restored.

Phelps’ story is important for two reasons. First, the way prison discipline is wielded impacts the length of someone’s sentence; that means the gross mismanagement of these facilities becomes a de facto adjudication of criminal penalties. A system as dysfunctional as the ADOC should have no say over how long a person remains in custody.

Not only can a person lose years of earned good time for a disciplinary action, but these reports affect parole decisions, which rarely go in favor of the person seeking release in Alabama regardless of their rehabilitative status. Besides, discipline is applied unevenly and illegally anyway. Considering that between 40-50 percent of all disciplinary reports are bogus, according to Daniel E. Manville, Clinical Professor of Law and Director of the Civil Rights Clinic at Michigan State University College of Law, it’s a scene fraught with unfairness.

Second, Phelps’ shorts expose the tension between policy and action in the Yellowhammer State. Lawmaking is little more than performance; it doesn’t even matter what the law requires because officials ignore it. Even if a member of the Alabama legislature supports the new good time law, it and the Administrative Regulation are clear that Phelps should have lost no more than 30 days for this minor — some might even say inconsequential — offense. Instead an official imposed 36 times that penalty.

And ADOC is doing nothing to bring this penalty into line with its own regulation and has declined to comment on the record.

The way officials are unbound by law and rules in the Yellowhammer State isn’t limited to what people are wearing. I’m hearing reports of illegal detention (holding people past their end of sentence date), imposing sentences that aren’t authorized by law, wrongly convicting defendants under an incorrect statute.

The law is designed to be a shield not a sword, but that’s exactly how Alabama officials use it. They swing the blade however they want, indifferent to where and how it lands.

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more. Her columns now appear regularly in The National Memo.

Yellowhammer Files: Inside Alabama's Crumbling, Inhumane Prison System

Yellowhammer Files: Inside Alabama's Crumbling, Inhumane Prison System


Lice so severe that even kerosene couldn’t kill them. Shoeless feet padding aimlessly. Gross malnourishment.

That’s how people described the Yellow Hammers, a semi-isolated colony of the ostracized and downtrodden in Illinois that developed during the Reconstruction Era.

The history of the Yellow Hammers is murky. As the legend goes, a Colonel Brodie of the Civil War — it doesn’t include a first name — came home to Alabama, the Yellowhammer State, and relocated to Wilmington, Illinois where he purchased several acres of wooded land and invited anyone from his home state to come live on it, creating essentially an encampment people called “Brodie’s Woods.” Those people who relocated to Wilmington from Alabama were impoverished, almost permanently, and made pariahs in the community as they huddled on Brodie’s land.

The pariahs’ poverty prevented those among them who were employed from purchasing their own equipment so they used company tools — when they were able to work — whose handles were painted yellow.

These stories, reported by a high school student, can’t be confirmed. First, the only nineteenth century colonel named Brodie was about 12 years old when the Civil War started. One William Brodie from Alabama fought in the Civil War but there’s no record of his being a colonel. A now defunct local Chicago newspaper, the Surburbanite Economist, reported in 1970 that an area of Wilmington, Illinois was known as Brodie’s Woods, but that’s one of very few verifiable mentions of the area.

The more likely story of the root of Yellowhammer is that a cavalry of soldiers from Huntsville went to Kentucky during the Civil War to aid Gen. Nathan Bedford Forrest’s — history will call him both a Grand Wizard of the Ku Klux Klan and an innovative warrior — Company A of the Confederate Army. They wore new sharp gray uniforms adorned with brilliant yellow trim. A Confederate soldier in tatters said they looked like the bird the yellowhammer, a type of woodpecker, which was made Alabama’s state bird in 1927. The Yellowhammers ended up becoming valuable team members; they supported several of Gen. Forrest’s victories, one of which frustrated Gen. Ulysses Grant’s Vicksburg Campaign.

That the history of the Yellow Hammers is so hard to pin down says quite a bit about the state today; tracing what really happens proves difficult. Even though Alabama media tries to cover events inside the prisons, the state of news in 2023 dictates that coverage isn’t as complete as anyone would like.

Just as the history of the Yellowhammers is unclear, the view into Alabama’s prisons is muddied by the Alabama Department of Corrections (ADOC) and its commitment to opacity. The officials who run that system do not like looksies. Early this year, ADOC stopped releasing the number of in-custody deaths on a monthly basis, ostensibly because there were so many that they either couldn’t keep up or didn’t want to be embarrassed by their inability to protect the state's wards.

Nevertheless, the reports of carnage that keep dripping out — two men were murdered on May 15, 2023, an additional pair added to a list of over 60 since January 1, 2023 — have contributed to a narrative that men and women in Alabama prison are incorrigible, even feral, when all they’re doing is adapting to the environment that the state has established for them.

The truth is that a good number of them are quite high-minded. When they staged a strike last fall, they didn’t even protest the squalid conditions they live in, which happen to be deplorable. Instead they sought policy reform on sentencing and parole which will ultimately benefit people beyond them.

Their strike demands were imminently reasonable, despite Gov. Kay Ivey’s disagreement. But the demands were really only part of the story of the strike. My sources tell me that — under the guidance of some dedicated leaders who I won’t name now — rival gangs and sworn enemies convened in good faith to hammer out what they needed to ask for. In that respect, they’re behaving better than many of us on the outside if they can display that type of comity. They came together despite the fact that they worry every day — along with family and friends — that they’ll be killed or starved. They’re fighting back non-violently. Bravely.

And even effectively. Because of the strike demands, lawmakers introduced two bills poised to pass the Alabama legislature. First is a bill that would mandate the right to attend one’s own parole hearings by video (they can’t attend these crucial proceedings now) and second is a bill that would allow people serving life sentences to petition to have their punishment reduced. Most prison work stoppages achieve nothing. This group of men and women convinced people to listen and act. Do not count these people out.

That doesn’t mean the wind is under their yellowhammer wings. Gov. Ivey just signed a bill into law that reforms the so-called “good time” statute by making it harder to earn time off one’s sentence because ADOC failed to take the good time of someone who attempted escape. Their resilience doesn’t mean they’re safe now or being treated justly. It’s just the opposite.

Alabama’s prison population reflects a lot of their yellowhammer history. Like woodpeckers, they’re tenacious fighters. Much like the Yellowhammer Cavalry in 1862, they're nimble, capable of putting up a few wins, but then ultimately forgotten.

And they aren't living much differently than Brodie’s Yellow Hammers. Some aren’t supplied shoes and therefore aren’t allowed in the chow hall. As I have reported before, the ADOC intentionally starves them when they assert their rights. They wander, often squatting in dorms where they’re not assigned because they want to avoid being raped. The violence doesn’t cease; I hear reports of outright beatings that all too often result in lost “good time” but no medical treatment. And they huddle, displaced and ostracized, in one of Alabama’s 15 state-sanctioned colonies of fear and panic.

But unlike the legend of Brodie’s Woods, these tales are true and verifiable. There’s no fiction here. It’s traceable. It tracks, all too well.

That’s why today The National Memo announces an unflinching series that goes inside Alabama’s criminal legal crisis: the Yellowhammer Files. We’re going to trace and track data and stories until something changes. Check these files as they are published and you will be stunned by what you read.

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more. Her columns now appear regularly in The National Memo.

Public Defenders Do More For January 6 Suspects Than Trump Ever Will

Public Defenders Do More For January 6 Suspects Than Trump Ever Will

Sixty years ago, on March 18, 1963, the Supreme Court of the United States issued its opinion in Gideon v. Wainwright, the seminal holding that all defendants in criminal cases are entitled to a lawyer even if they can’t afford one.

Clarence Gideon, after being denied a lawyer in a trial over whether he stole from a Florida pool hall — an offense of which he was innocent yet sentenced to five years in prison — scrawled out a pro se petition to the country’s highest court. The justices accepted Gideon’s bid to overturn his conviction and eventually reversed it with instructions that he couldn’t be convicted unless he had counsel.

About five months later, on the day after a jury acquitted Gideon in his second trial — one where he had the assistance of a flamboyant and effective local criminal defense attorney — the United States Senate voted on the Criminal Justice Act. The federal statute would require states and the federal government to provide counsel to defendants in criminal cases who couldn’t otherwise afford representation. The House of Representatives passed the bill months later, in 1964. As soon as it was passed the Criminal Justice Act backed up Supreme Court precedent with a statute that defendants could cite in order to secure themselves representation they couldn’t otherwise afford.

Since then, however, indigent defense has redeemed neither the promise of the Supreme Court decision nor the federal statute, at least not in the public’s eyes. For instance, in a public opinion poll conducted by American University, only 47 percent of respondents believed that public defenders provide adequate legal representation; a full half think they don’t. Only 45 percent are convinced that public defenders care about their clients. Fifty-three percent assume they aren’t very invested at all.

It’s not like public defenders can afford a public relations campaign. Since the Supreme Court held that defendants had a right to effective assistance under the Sixth Amendment and since Congress said that means someone else has to pay for an attorney when the accused can’t, the funding has never matched the need.

One of the reasons why funding for indigent defense is so inadequate is that there’s no specific way for the federal government to direct funds to indigent defense specifically. The Justice Department’s discretionary grant programs simply make money available to state and local public safety agencies each year.

But they’re just that: discretionary. Which means none of the states or municipalities are required to use the money for criminal defense. Most use it for local and state police agencies and, by strengthening the adversaries of public defenders, the funding mechanism ends up inadvertently weakening legal assistance for poor criminal defendants.

The problem here isn’t merely that the federal government isn’t assisting states to protect the constitutional rights of defendants; that’s a persistent failing for sure. The problem is that there are easy ways for presidential administrations to assure that public defense agencies don’t even get the few crumbs they might catch and not be identified for being as anti-Gideon as they are.

President Donald Trump wanted to reduce the discretionary grant money provided by the Edward Byrne Memorial Justice Assistance Grant (JAG) Program by $300 million. His administration never made many comments about indigent defense at all — former Deputy Attorney General Rod Rosenstein made remarks about the Right to Counsel National Campaign and said he was proud the Justice Department started it — although it was the Bureau of Justice Assistance under the Obama administration and the Justice Programs Office at American University that actually did the work on it in 2015.

For the most part, the Trump administration never mentioned public defense during its four years, except when the ex-president lamented a terrorism suspect being able to access “an outstanding lawyer” because of the country’s indigent defense infrastructure.

Ironically, there’s no greater experiment testing the value and worthiness of public defense than the Justice Department's January 6 dragnet. As of February 16, 2023, 1003 people have been charged with crimes related to the events at the Capitol that day; 421 of those criminal cases have been terminated or resolved as of March 10, 2023. Federal public defenders represent 256 defendants whose cases have been adjudicated as of March 10, 2023. Another 165 defendants retained their own attorneys.


The public defenders performed better than the privately retained attorneys. Of those who avoided jail, a total of 186, 113 of them, or 60 percent, had counsel provided for them. Forty percent of those who received sentences of home confinement or probation had shelled out for an attorney.


Comparing the populations side-by-side, the same percentage of clients represented by counsel they paid had to report to a federal prison as those who had counsel we all paid for.


Fifty-six percent of clients went to prison and 44 percent stayed home, no matter who represented them, which shows that
Public defenders have helped Trump’s followers more than he ever did. Or ever will.

But they’ll continue to struggle to get the funding they deserve to cover salaries and the cost of investigations into the allegations against their clients. It's hardly the anniversary gift they deserve.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.







The J6 Prison Choir's 'Patriotic' Ballad With Donald Trump Is A Riot. Literally.

The J6 Prison Choir's 'Patriotic' Ballad With Donald Trump Is A Riot. Literally.

In early March Donald J. Trump and the J6 Prison Choir released a song — the audio alternates the choir singing The Star-Spangled Banner, with Trump reciting the Pledge of Allegiance, and ends with the prisoners chanting “U-S-A! — that’s now available for purchase. It became Apple Music’s top downloaded song on March 11.

From the audio, it’s not clear whose voices are in the choir or where they’re calling in from. Various reports have stated “jail” but didn’t specify whether it was Washington DC’s Central Detention Facility. Vanity Fair reported that the men in the choir were convicted of the crimes they were charged with, which would suggest that some called from a Bureau of Prisons facility.

I don’t think it’s possible to know who’s on that recording and where the crooning came from. An email to the spokesperson for the Washington DC Department of Corrections about the location of choir members remains unanswered.

It’s most likely that a number of men in the Central Detention Facility sang the song. The males confined in the jail are 87 percent Black; administrators decided to house J6 defendants together, away from others. The segregation has been compared to solitary confinement but the ways the men live don’t line up with that.

Reports from Washingtonian magazine describe a group of men who are allowed out of their single-occupant cells for five and a half hours per day; in contrast, solitary confinement restricts a person to his cell for 23 and a half hours per day. In solitary confinement, inmates can’t congregate or do anything together. To pass time, the Sixers often sing the national anthem in unison.

Plopping these defendants in one cell block is not tantamount to the hole. Rather, it’s a form of correctional management to prevent these Why-O’s from getting into even more legal trouble when they would eventually scrap with other general population inmates.

Ultimately it doesn’t matter who’s in the choir because it’s not the singers but the song that’s the problem. The song’s still a riot – literally. It’s a second insurrection involving the former president.

“A riot is a wild or violent disorder, confusion or disturbance” according to the Central Detention Facilty’s Inmate Handbook. The handbook doesn’t explore the difference between disorder and disturbance but it doesn’t need to do that. Disciplinary rules are notoriously vague so that any behavior that staff want to punish becomes eligible.

The standard for what counts as a riot in prison is low, almost impossibly low. In practical terms, a prison riot is two or more inmates acting in concert without a direct order from staff. Singing together is a riot. Signing a petition for better conditions is a riot. A hunger strike is a riot. Two or more inmates writing letters is a riot. It’s subjective; if someone’s bothered by an inmate’s behavior then it’s misconduct.

In 2020, Edward Terrell Walton and two other prisoners wrote an open letter to Gov. Gretchen Whitmer and corrections chief Heidi Washington complaining about conditions and visiting policy. The warden of Michigan’s Chippewa Correctional Facility immediately placed Walton in solitary confinement and charged the three with inciting a riot.

Walton also sent an email through the JPay electronic communications system to private parties on the outside asking them to call the warden and tell her if she doesn’t make the changes the prisoners want that there would “be a protest scheduled to take place at this prison to make national attention out of the situation.” That gets closer to the commonly accepted understanding of disturbance but demonstrations outside the facility aren’t, and can’t be, inmate controlled. Holding a prisoner responsible for a free person’s actions is a stretch. Calling it a riot makes it even longer.

But it's easy to see why Walton landed in solitary confinement. Inside the prison, "there is no such thing as a peaceful demonstration," Michigan Department of Corrections spokesperson Chris Gautz said to a reporter from the Detroit Free Press about Walton’s punishment. "Prisoners are not permitted to engage in organized protest." Three men signing a letter is organized. And it’s a complaint. Therefore it’s a riot.

This isn’t some Michigan corrections curiosity. It’s the rule everywhere.

The Sixers can defend themselves against accusations of inciting a riot by arguing that it wasn’t a protest; it was commerce, a fund-raising effort for the families of the people who are incarcerated for their involvement with the 2021 attack on the Capitol — and democracy. Or pointing out that the national anthem doesn’t address conditions in the only jail in the country’s capital. Or maybe they’ll counter that none of the singers acted in concert with each other, that each choir member recorded his piece alone and the producer layered the recordings over each other. Accusing them of rioting might be overkill.

But other, less serious offenses await them in the Inmate Disciplinary Code of Offenses, violations like “Interference with the Orderly Operation of the Facility” which includes “Engaging in loud or boisterous talk, laughter, whistling, or other vocal expression, if such is, or may tend to be, disruptive of order or a disturbance to others.” Any iteration of these traitors singing our anthem would count.

Many incarcerated people don’t understand that even relatively innocent actions, if done in a group, can be interpreted as overtures to violence. Prison/jail is a place where the same activity that is approved in one instance becomes threatening in another. When inmates are accused of these offenses, the argument centers on what their intent was, and quite frankly, that can be hard to discern. It’s why prison discipline gets so messy.

While every salient detail isn’t really known about the Sixers’ rendition of the national anthem, this is not in dispute: the singers either knew that what they were doing could be interpreted as a riot or they didn’t know. There’s no in-between.

Either way, the song sung by several men is still problematic. If the choir members didn’t know that their sing-along sessions could be interpreted as a riot, then they’re not paying attention and haven’t caught on to what the rules are. Inmates who are concerned about behaving better clue themselves into the ways the contours of the social compact get reshaped in different places and they’re mindful not to break the contract again. Ignorance isn’t a defense here.

If they did know that their patriotic ditty would be subjected to scrutiny as to whether it was a protest or not and possibly labeled another riot, then they just don’t care about the directives and rules of prison life, many of which are designed to keep the place safe and secure, even if they are often applied in a way that seems oppressive.

If the Sixers knew that it could be a riot, then they’re not afraid of any group effort as long as it serves and pleases Trump. That’s what got them their DC digs in the first place.

Any way it’s analyzed, the ballad doesn’t bode well.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

Alex Murdaugh in court after jury found him guilty of murdering his wife and son

Murdaugh Coroners' Folly Raises Hard Questions About Homicide Convictions

Last Thursday, a jury found former solicitor of South Carolina’s 14th District Richard Alexander “Alex” Murdaugh guilty of shooting and killing his wife, Maggie, and his son, Paul, in 2021. South Carolina Judge Clifton Newman sentenced Murdaugh to two consecutive life sentences the next day.

As the nation watched in rapt attention, the Murdaugh trial reintroduced a staple of every true crime murder saga: the medical examiner/coroner. And the trial showed how vital — and inconstant — they are in determining whether a homicide occurred or not.

Medical examiners and coroners both investigate deaths that may be the result of a criminal act or other suspicious circumstances, but a medical examiner is a licensed physician who is specially trained in forensic pathology. A coroner, on the other hand, is an elected or appointed official who is responsible for investigating deaths in certain jurisdictions, usually at the county or municipal level. Coroners aren’t required to have any particular medical or legal qualifications.

Given their lack of training and susceptibility to political pressure, coroners seem more likely to make mistakes or choose a manner of death that doesn’t match the facts. But the rate of inaccuracy on death certificates completed by coroners as opposed to medical examiners isn’t necessarily higher.

In a study of death certificates in Vermont, for example, researchers found that more than half of death examinations contained major miscalculations, but that the physician/non-physician difference in the investigator didn’t matter in a statistically significant way.

According to the National Registry of Exonerations, a project of The University of California Irvine Newkirk Center for Science & Society, the University of Michigan Law School, and the Michigan State University College of Law, 103 people were exonerated of murder because there was no crime; 26 more were cleared of manslaughter convictions because there was no crime. These wrongful convictions lie at the feet of the medical examiners or coroners: their determination of manner of death was inaccurate, and in a material way. There would never have been any criminal case if the reported manner of death had been accurate.

The 129 exonerations aren’t concentrated in coroner country. They’re spread among states with medical examiners and those who employ coroners.

Around five percent of medical examiner conclusions determine a cause of death to be criminal. Of that criminal subsection, about five percent will be ambiguous in some respect. Even if every death were examined this way — the Centers for Disease Control and Prevention says 3,464,231 people die in this country every year; only one-third to one-half are examined for cause and manner of death — that leaves 173,212 potential homicides. Of those, 8660 are hard to discern.

In 2020, 12,440 arrests were made for murder and non-negligent manslaughter. Some of those charges must have been dropped or even disproven at trial, but the numbers should be closer. More corpses should be examined for sure, but even a rough error rate is hard to pinpoint.

In many ways, the role of the official who determines death is more important than the police or the judiciary when settling what happened when someone died -- and it’s one of the most loosely constructed offices in state and municipal governments.

When an erroneous finding occurs, it's not always a frame-up. A variety of factors, including the quality of the evidence available, the thoroughness of the investigation, and the expertise and experience of the examiner or coroner can influence the accuracy of their findings. Additionally, medical experts may debate their conclusions, particularly in cases where the cause of death is not immediately apparent or where multiple factors may have contributed to the death.

But the Palmetto Low Country where the Murdaugh family acted in some law enforcement capacity for decades might be the perfect place where the shortcomings of a compromised coroner could play out. And they did, but not in expected ways.

The Colleton County, South Caroline coroner, Richard Harvey, studied “pre-med” at Medical College of South Carolina but didn’t attend medical school there. According to his own testimony at Murdaugh’s trial, Harvey is one of the first coroners in South Carolina to be medically trained. He also determined the time of Maggie and Paul Murdaugh’s death by placing his hands under their armpits to measure their body temperatures— as opposed to taking a rectal temperature, which would have required him to pull down the decedents’ pants. An axillary body temperature using a thermometer under the arm is an accepted method of determining time of death, but sliding fingers under armpits isn’t. It never has been.

As it turns out, Harvey’s finger stick estimate probably wasn’t that far off. With Harvey and his 30 years experience and some education at the helm, Colleton County is one of the better coroner’s offices, even if Google Maps shows it housed in an old Pizza Hut.

In neighboring Hampton County, South Carolina where Murdaugh served as solicitor, County Coroner Anna Fields graduated from high school. That’s the extent of her education. Fields defeated the previous coroner, Angela Topper, who was appointed to replace the coroner before her, Ernie Washington, after he resigned, mid-term, in 2019, without public explanation.

The Hampton County coroner deserves as much scrutiny as the one who testified because Maggie and Paul Murdaugh’s murders aren’t the only ones at play in this sordid tale. Washington had ruled the manner of deaths in two cases — that of 19 year-old Stephen Smith in 2015 and Murdaugh family housekeeper Gloria Satterfield in 2018 — as accidental and natural. But investigations into those deaths have since been reopened because there’s reason to believe they were unnatural — and potentially closely tied to Murdaugh family members.

Washington wanted to rule Smith’s death a homicide — by gunshot wound to the head, which was patently incorrect — but was overruled by the Medical University of South Carolina pathologist who said it was a hit-and-run. The coroner-pathologist showdown wasn’t a battle between facts and wishes; it pitted two egregious errors against each other. Washington eventually conceded, and Smith’s death was ruled an accident per the pathologist’s assessment. But if Washington had prevailed in his determination of a homicide, any defendant arrested for it could have easily defeated the charge simply by proving that it wasn’t a gunshot wound. It’s hard to say whose mistake — Washington’s or the pathologist’s — protected the perpetrator more.

Ever since the National Research Council concluded this system was “in need of significant improvement” in 2009 and recommended that states replace coroners with medical examiners, reform efforts have been underway. Because so few people want to become pathologists and poke stiffs, there’s a serious shortage of people qualified to work in these offices. Right now, the National Association of Medical Examiners lists more job openings than the number of people who graduate as forensic pathologists each year, which is about 40.

To train coroners to make them as good as medical examiners doesn’t make sense anyway, since empirically medical examiners produce results that are just as bad.

The coroners’ folly exposed by the Murdaugh case can’t be limited to South Carolina alone. It’s not limited to any area of the country and it should undermine our moral confidence in homicide convictions. In many jurisdictions, the person who sets off the whole murder investigation often has little idea what he or she is doing.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

Hulu's Sarah Lawrence 'Cult' Series Omits Bernard Kerik's Creepy History

Hulu's Sarah Lawrence 'Cult' Series Omits Bernard Kerik's Creepy History

Hulu’s three-part documentary series Stolen Youth: Inside the Cult of Sarah Lawrence is getting a lot of attention — but perhaps not the right kind.

The upshot of the story is this: Returning citizen Larry Ray bunked with his daughter at Sarah Lawrence College when he was released from prison. He ended up gaslighting his daughter’s roommates enough that he convinced them they owed him thousands upon thousands of dollars — and that his and their lives were in danger because former New York Police Commissioner Bernard “Bernie” Kerik had a team of people stalking Ray after he turned Kerik in to the FBI for the charges that eventually led to his four-year prison sentence and cost him a Bush administration appointment as secretary of homeland security.

Ray’s stories were outlandish and false. There’s no evidence that Kerik targeted Ray, yet bright young people — students at Sarah Lawrence and Columbia University and a psychiatry resident at UCLA/USC — believed his fantasy.

It’s unfathomable to the average audience, mostly because the series doesn’t mention Kerik’s history of harassing and stalking his detractors. Knowing how Kerik operates, which the cult members did, makes it easier to understand why up-and-coming adults, those with potential to succeed in ways most people never do, fell for Ray’s histrionics.

The crime Ray described is called gang stalking, and it refers to harassment and intimidation tactics used by a group of individuals against another person or toward a smaller group of people.

Some psychiatric professionals don’t acknowledge gang stalking as an actual phenomenon; they consider it a “novel persecutory belief system” which means there’s no stalking and the alleged victim is simply paranoid or a QAnon adherent.

Formal research has been conducted into gang stalking; the few academic studies do their best not to deny the existence of the activity, but thinking one is gang-stalked nevertheless comes off as a manifestation of mental illness. One study quoted the answers to the question of why targets thought they were being stalked, and they sound decidedly kooky:

“It is part of an overt agenda to create and test mind control. They are creating weaponry tested on us.”

“I am watched (sic) for 30 years after they put in the implants to see what the implants did to me.”

“Because I refused to join their devil cult and become an operative, I became a victim. My invitation to join came at an early stage via voice-to-skull.” Voice to skull is a technology that transmits sound into the skull of a person or animals.

We shouldn’t write off these accounts of gang stalking automatically; sometimes these stories are real. This became clear recently when it was revealed that a group of eBay employees, including two members of its executive leadership team, stalked and harassed two e-commerce bloggers, Ina and David Steiner of Natick, Massachusetts. The Steiners had criticized some of the auction site’s policies, including outsized executive pay, on their blog EcommerceBytes.

As well as sending threatening messages, eBay employees sent deliveries to the Steiners’ home, including a book on surviving the death of a spouse (the implication being one of them was headed to the graveyard soon), a funeral wreath (because eBay is nothing if not socially adept when it comes to acknowledging a death in the family), a bloody pig Halloween mask, a fetal pig, and live insects. They also posed as the Steiners on Craigslist and asked anyone reading the ads to show up at their home and knock on the door for a sexual tryst. For good measure, they ordered $70 of pizza to be delivered at 4:30 a.m.

This was the best the team could come up with after James Baugh, eBay’s senior director of safety and security, showed the 1988 Anthony Michael Hall film Johnny Be Good, in which two friends send pizzas, an elephant, a stripper, an exterminator, and Hare Krishna missionaries to their football coach’s home.

The only reason why the Natick Police Department was able to unspool all the crazy — and prevent Baugh from delivering a bag of human feces, a running chainsaw ,and a rat to the Steiner’s front porch — was that David Steiner managed to get a picture of the license plate on a car that was tailing him and it was traced back to a rental agency. Seven eBay employees were criminally convicted for this gang-up, the last one just this past January.

Their narrative was completely unembellished, but if David or Ina Steiner had said to someone “I think eBay is sending me fetal pigs and pizza,” a psychiatrist would have filled them to the gills with Haldol.

Being gang-stalked by Kerik and his crew was a fiction of the odious Larry Ray, a misrepresentation that served his degradation of young minds, but these team terrorizations do happen — and they happen to many people who associate with Bernie Kerik.

It’s not like Kerik didn’t foreshadow this to all of us. According to a whistleblower report, the convicted felon gave a speech back when he was New York City's corrections commissioner that included a vow to make anyone miserable who had been disloyal to him and a warning that he had been an effective ‘hunter of men’ and would hunt down those who didn’t display sufficient fealty.

And it looks like he lived up to the promise. When he broke up with one of his mistresses, publisher Judith Regan, he called her while she was dining out with another man and described what she was eating. According to Regan, he had her followed to Los Angeles and called her to inform her he was following her son back to college in Massachusetts. Regan looked crazy, too; an associate of Regan’s described her to the New York Post as “raving” about Kerik’s stalking her.

Kerik didn’t leave these hijinks behind after he was incarcerated from 2010 to 2013.

Dara D’Addio sent the married Kerik a card while he was doing time and they started a non-physical but intimate relationship wherein she ended up essentially co-authoring his memoir. Kerik mailed her 135 letters, made 150 phone calls to her personal unlisted number, and sent her 735 emails. But when Kerik didn’t invite her to his homecoming party, she ceased contact and asked him to do the same.

Instead, Kerik started threatening and harassing her through a third party. On her blog, “Doing Time with Bernie,” D’Addio says Kerik pledged "to destroy [her] life."

It’s the same modus operandi that infused Kerik’s support for former president Donald Trump. The House Select Committee to Investigate the January 6th Attack on the Capitol subpoenaed Kerik in November 2021 and he provided papers, among them a 22-page “strategic communications plan” he wrote, to be implemented between December 27, 2020 and January 6, 202. The plan targeted elected officials who wouldn't buy into the lie that the 2020 presidential election was stolen. Kerik wanted the home of Jocelyn Benson, Michigan's secretary of state, to be surrounded.

There’s no defense to Larry Ray’s reign over the Sarah Lawrence students — literally. The Hulu series secured the video Ray recorded of his abuse from the court file; Ray’s attorney had used it at trial in an attempt to show that her client really believed his story.

But Kerik sports a verifiable record of attacking, stalking, and seeking to destroy any critics, people who did less damage to him than Ray did. Believing Ray wasn’t as crazy as this series makes it appear.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

elon musk

Musk Is Finding Out Why Opinion Run Rampant Will Cost Him Billions

Last week we learned that Twitter has only 290,000 paying subscribers worldwide, making the platform's projected annual revenue $28 million, far short of the $3 billion free speech maximalist Elon Musk planned on.

On the platform, Musk's pandered to the alt-right so much that advertisers have deserted the platform, fearing that their brands will appear adjacent to extremist and white nationalist messaging. Behind the scenes, he's already delivered on his promise to loosen speech restrictions by laying off or firing content moderators. The platform’s COVID misinformation policy is officially kaput.

Musk has to decide what he likes more: money or speech; in the past, unmoderated opinion content has proven to be a bad business model. It doesn’t profit.

Twitter is just like a traditional opinion forum but faster. Its dominance may even explain the way that opinion forums have changed in recent years. Some papers have stopped publishing editorials. Others have reengineered their opinion sections to solutions journalism model. Two months ago, The Washington Post scuttled its 70 year old Outlook section entirely and replaced it with a resurrected book review section. Four months before that, Gannett Media, the largest newspaper chain in the country, announced it was reducing its opinion output because readers didn’t like to be told what to think.

Opinion sections, of course, don’t tell anyone what to think but rather that they should think. They’re an essential part of content-sharing. As John Stuart Mill in his treatise, On Liberty, wrote: “Very few facts are able to tell their own story without comments to bring out their meaning.”

When that comment isn’t fact-based, it’s a losing bet. It’s played out several times in the past five years.

Once upon a time, bloggers had to pitch themselves to The Huffington Post to get space on the blog; it wasn’t just for everyone. I did it the same way many others did: I wrote directly to Arianna Huffington and got in. Even when writers were approved, editors would review and reject pieces that failed to meet the company’s standards.

That was in 2015. A year later, HuffPo editors delimited the admission requirements to a global platform and opened it up to anyone who wanted to post.

It didn’t last long. In January 2018, the platform's Editor-in-Chief Lydia Polgreen posted the reason why the blog-turned public bulletin board would end: “Open platforms that once seemed radically democratizing now threaten, with the tsunami of false information we all face daily, to undermine democracy.” It wasn’t a coincidence that just months before the company laid off 39 employees.

Bloggers migrated to Medium.com, another platform where anyone can open an account and post whatever they want, regardless of whether it’s accurate or not. Medium bans hate speech, promotion of harmful conspiracies, and spam, among other things, but falsehoods are not on the prohibited list.

Right around the time of the 2016 election, Medium marketed itself to political people as the nation’s — even the world’s — opinion page. “Get your message out with none of the editorial interference that comes with old-school media” is how Nancy Scola of Politico played Medium’s pitch.

But eventually misrepresentations got so bad that the Knight Foundation granted $140,000 to the Tampa Bay Times’ Politifact section to check political statements on the platform.

The freedom cost them. Last year Medium bought out almost all of its editorial staff when the founder, EV Williams, also a cofounder of Twitter, admitted that the site simply wasn’t making money.

“We have published many stellar stories that found a wide audience and more than paid for themselves,” Williams said at the time. “But our hit rate has been low, and we’re not near where we need to be to make it work economically.”

The latest iteration of opinion distribution is Substack. Writers, any writer at all, can monetize content by charging subscribers for yearly subscriptions for newsletters. Substack was founded in 2017 but became quite popular in 2021 when a number of opinion journalists — Charlie Warzel and Bari Weiss of the New York Times, Matt Yglesias of Vox, Matt Taibbi of Rolling Stone — left their posts and started Substack newsletters.

With a valuation of $650 million, Substack raised $65 million and paid advances to writers, a few close to half a million dollars; some writers made decent money in a model that other journalists labeled a scam. Substack differs from other platforms in that it offers writers legal advice, writer office hours, and other resources.

Substack established a rather laissez faire policy toward fact checking and readers noticed. “If you like your copy groomed and pristine, copy-edited professionally and fact-checked, and locked down by logic, some Substacks will give you fits,” wrote Politico’s Jack Shafer. Vaccine misinformation proliferated on the site and it was fact checked by major news outlets.

Some even classified the site as “alt-tech” like Rumble, Telegram, and Gettr, right-leaning platforms that embrace no-moderation management. But they struggle making money as well. Notably, Rumble lost $1.8 million in the first quarter after its IPO. Gettr’s valued at $2 billion now but it’s not attracting users in the ways it planned to.

Unsurprisingly, Substack’s already conceded its lack of sustainability. The company stopped its Series C fundraising earlier this year when it was revealed that Substack made only $9 million in 2021. The newsletter purveyor is trying to snatch up those who scurry away from the Bird App during the tumult, even starting a new private Substack option last month where contributors can approve who follows their work, much like Instagram. It’s worth noting that this new option on Substack actually prevents ideas from hitting the famed ‘marketplace.’ That’s what they predict will make them money.

HuffPo used an advertising model and Medium and Substack use subscriptions but how they make their money doesn’t matter; how they lose it is identical and it’s by not regulating content.

Of course, Musk has said that his goal in buying Twitter isn’t to make money but to help humanity. Even if that’s the case, companies need to balance their books to pay employees. Musk is leveraged on the Twitter purchase and he’s struggling to pay bills. And with his increasingly controversial tweets, the big advertisers who flew the coop don't have much reason to roost.

Musk should examine history: HuffPo, Medium, and Substack prove that solvency isn’t likely when opinionists run amok.

Accepting that democratization of content drives away customers leads us to some uncomfortable truths, namely that the vaunted marketplace of ideas may be a financial sinkhole — and that emporium allows only ideas to be exchanged, not money.

We want the market forces of this theoretical bazaar to reward good, factual ideas and drive out the unsourced ones. The co-founders of Substack relied on the idealized version of the market, writing in their newsletter, “To put it plainly: censorship of bad ideas makes people less likely, not more likely, to trust good ideas.” Indeed, one of the reasons why a robust marketplace can’t develop on social media is the presence of algorithms, artificially elevating the mediocre thoughts. That was Substack’s newsletter model’s selling point; readers could avoid any content they didn’t want by subscribing to what they were looking for.

David Weinberger, an affiliate at Harvard’s Berkman Klein Center for Internet and Society, told The Hill: “Musk does not actually understand free speech or the dynamics of the internet and is missing the point of what conversations [online] are.”

That he fails to comprehend how the marketplace of ideas functions, of course, is the least of Musk's troubles. But it's an immediate one, one that's almost guaranteed to destroy the company he bought.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

If You Want Us To Help Prove Your Innocence, Start With This Checklist

If You Want Us To Help Prove Your Innocence, Start With This Checklist

The year 2022 closed out with many readers reaching out to me with cases that they think deserve more scrutiny. I’m flattered and I would like to help. But, on occasion, the outreach I receive is a little light on foundational documents.

I’m kicking off 2023 with a guide that anyone can use if they’re looking for help on a criminal case from a journalist or trying to help a prisoner reduce their sentence.

This is what you should do before and while seeking any journalist's assistance on a criminal case or post-conviction challenge.

Come correct: Collect all your information before reaching out: docket numbers, copies of court files (never walk out of court with original records; that’s a crime), lawyers’ names and all of their contact information (physical and email addresses as well as office telephone numbers and cell phone numbers).

All correspondence between the defendant/prisoner and lawyers can illuminate what happened. An inmate file would be helpful if the person is incarcerated. A signed release of information allowing attorneys to speak with the reporter should be handed over up front. It can accelerate our research.

Write a timeline: As Tennessee Senator Howard Baker asked former White House Counsel John Dean about Watergate: “What did the president know, and when did he know it?”

Often it’s the order of events that matters in these cases because it either confirms or challenges what people know. This is key. Without a linear depiction of what happened and when, it’s hard to see who knew what and when. Because criminal cases aren’t just about actions but also the accused persons’ state of mind, seeing the events spatially can be essential to any inquiry.

Get transcripts: Transcripts are tricky to take to a reporter because technically they’re not public records; court reporters/monitors own them privately. Their private nature makes them costly. Courts can grant fee waivers for transcripts to applicants who qualify (an incarcerated person, friends and family members with limited means). The clerk in the courthouse where the hearing or trial was held can provide these forms; they vary from jurisdiction to jurisdiction.

Courts won’t approve these fee waivers for journalists and news outlets. We have to pay for these volumes and it’s an expensive gambit if they don’t reveal much to assist with the investigation.

The effort of applying for the waiver and having master copies of testimony is worth it. Sometimes you might wonder if the judges who write appellate opinions even read the transcripts at all when you see the way the testimony (the content of the transcripts) appears in a court’s opinion. Those inconsistencies provide fertile ground for someone other than a lawyer to find a reversible error.

We did exactly that here at The National Memo in 2022; we found false evidence in the trial transcripts of Melissa Lucio, the only Hispanic woman sentenced to death in Texas. Her execution was paused pending a hearing after her attorneys included our reporting in a petition to the court. Read the Lucio series here.

Keep a copy: Do this for all paperwork you complete, like fee waiver applications you file, rejections to requests for records.

Sometimes agencies don’t cooperate and it may seem impossible to get the documents you need. But that may be part of the story and we’ll need that proof.

Don’t be offended when a journalist doesn't take your word for it: When we ask for confirmation of a part of the story, it’s not because we suspect you of misrepresenting anything. We need confirmation for our editors.

If there’s no other evidence besides your knowledge of a particular situation, then turn that knowledge into evidence. It can be done relatively easily. In that case, use this template to make out an affidavit. An affidavit — sworn, out-of-court testimony — can be used as evidence. It doesn’t prove that the facts within are true, but it does show the witness’ willingness to expose themselves to perjury charges if the contents of the statement are proven false. Often journalists can use these statements in their reporting.

Find a therapist: This isn’t a layperson diagnosis of mental illness. I’m not pointing out flaws in those people seeking justice for friends, family members or even prisoners. It’s quite the opposite.

Wrongful convictions, lengthy incarceration, waiting for a languid bureaucracy to fix mistakes they made in a millisecond are traumatic experiences even for bystanders. Trying to explain the facts and the trauma to a journalist wastes time and asks them to act as an advisor of sorts. We know — and especially I know — how harmful injustice is, not just to the defendant or inmate, but also people close to them.

But explaining to us how stressful all of this doesn't help anyone — we’re supposed to be investigating — but it’s also pointless because we’re not trained to assist in those ways. Finding a professional with whom you can work out your feelings will enhance your ability to secure attention — and therefore assistance for your cause. Find A Therapist is just one source of information on service providers in your area.

Be Patient: Getting new records or finding the best witness can take time. It won’t happen overnight.


Be Realistic: While pressure from the press can break logjams and even expose innocence, it’s not always possible. We’d love to clear some names and spring some bodies from custody but we’re not magicians.


Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

Restoring Pell Grants To Prisoners Represents Real Change -- Despite Obstacles

Restoring Pell Grants To Prisoners Represents Real Change -- Despite Obstacles

This is the fifth in a series of five articles on Pell Grant access for incarcerated students funded by a reporting fellowship from the Education Writers Association. Read the first, the second, the third and the fourth in the series.

In preparing to reverse 28 years of denying low-income, incarcerated students a fair chance at enrolling in higher education programs, the Department of Education tried to troubleshoot potential obstacles. Using regulations, the department banned for-profit colleges from educating students whose schooling is paid for by Pell Grants, limited the number of students schools could admit, and layered approval mechanisms to create a thorough, if daunting, bureaucracy.

For instance, the department changed the process for completing the Free Application for Federal Student Aid, or FAFSA, in an attempt to make it fair and equitable for inmates by requiring all paper applications to be sent to a dedicated post office box. The specially created form for prisoners differs from the regular FAFSA in one way: the post office box number — ensuring that their applications receive dedicated attention.

While not a part of the FAFSA Simplification Act and its accompanying regulations, the Fresh Start program announced by the department on April 6, 2022 — borrowers with student loans in default have the opportunity to bring them into good standing without making a payment — seems designed to remove barriers to eligibility for many aspiring Pell Grantees.

While the Department of Education never explicitly connected Fresh Start with the new Pell Grant eligibility — the initiative will apply to all borrowers when it goes into effect after the pandemic pause on student loans is lifted — department officials and consultants had to know that leaving students who can’t pay bills from behind bars out of the new educational endeavor would negate the second chances they wanted to create. Prisoners lack access to accounts and earn somewhere between 14 cents and two dollars per hour.

How prisoners will avail themselves of the opportunity to get out of default still requires attention. The number of incarcerated students with loans in default remains a question, but the Department of Education forewent collection on 82,021 borrowers in prison or jail between 2012 and 2014.

Prison education advocates, including the Vera Institute of Justice, and financial aid professionals take issue with the way the new FAFSA form was written -- and borrowers’ rights organizations think the student loan debt of certain incarcerated individuals should be forgiven entirely.

Thousands of other logistical issues await the students, the corrections workers, the educators, and the advocates in returning to 1994, the last time inmates were eligible for Pell Grants. Unfortunately Congress and the Department of Education likely made hundreds of misjudgments in writing the rules.

But none of that should cloud what amending the Higher Education Act signifies.

To begin with, it’s the first federal policy in history to acknowledge incarcerated people and their expertise as essential to prison programming. The regulation codifies their input.

“They have to consult with us by law. That’s the opposite of what any inmate goes through. Even our medical decisions don’t involve us,” said one currently incarcerated inmate via email.

Despite this advance in prisoner involvement, formerly incarcerated people have mixed feelings about the Pell Grant restoration. Abraham Sandoval has been home from prison since August. He works as an intensive care unit tech. He took classes both from a Second Chance Pell Experimental Sites Initiative program (Second Chance Pell program) at Asnuntuck Community College in Connecticut and another program that doesn’t accept Title IV federal funding and saw that the Second Chance Pell program, with its need to prove itself, as sacrificing educational quality in order to conform with correctional demands.

Santiago fears that the infrastructure to implement this new program isn’t ready, regardless of the funding source.

In an essay published in Inquest, Santiago and a co-author argued:

“Pell restoration, in principle, must also prioritize building a 21st-century infrastructure to support and further higher education in prison — by putting the needs of incarcerated students at the forefront.”

Knowing how education inside works, Santiago has questions.

“Where do the Chromebooks come from? Where is this technology part of it? Where's the classroom space? Where's the training for staff? The government incentivized incarcerating people. So where are the incentives for the [correctional] administrations across the country to take it, really implement this in a really meaningful way?"

Other formerly incarcerated students are less pessimistic.

Shannon Ross is the founder and executive director of The Community, an organization dedicated to pre-entry and “correcting the narrative” that he founded in 2014 while serving a 17-year prison sentence for a violent crime. Ross finished his bachelor’s degree during his incarceration through a Pell Grant provided through a Second Chance Pell program.

"You have a situation right now where …You're not just investing in people who are in prison and have been forgotten. It's more than that," said Ross. "You're investing in a solution to a problem that society has been grappling with and significantly right now, which is crime. And how do we respond to the fact that human beings commit crimes and not just crimes, violent crimes?"

Another important development to remember is that regulations for the new law may seem tedious but they represent a philosophical shift by deeming inmates as inherently worthy of postsecondary schooling. The Department of Education and the Negotiated Rule-making Committees tasked with interpreting the statute established safeguards to assure that the quality of the courses and the experience matches that of students who aren’t incarcerated. For years, the caliber of the coursework in correctional facilities was often a secondary consideration behind access; battling over eligibility for Pell Grants forced people to make the case that prisoners merited postsecondary education at all, regardless of its quality.

Support continues for students to be eligible for this aid, but the way the issue is framed to the public makes a difference. When researchers dangle societal benefits and taxpayer savings in a survey, respondents tend to support the endeavor of postsecondary education for prisoners.

Yet describing the reasons for educating prisoners for their own sake proved less persuasive when researchers took into account study subjects' level of racial resentment. It bears mentioning what may be obvious to many, which is that race is an important aspect of this intersection of educational policy and mass incarceration. Black and Brown low-income people are more likely to be prosecuted and punished with confinement. The ban on Pell Grants was another exquisitely effective tool for excluding poor minorities from educational opportunities; the new and amended Higher Education Act – even with its excessive and misguided regulations – retired that tool.

Under this existing rubric, the privilege of education belongs to the people outside the facility and they make a decision to share it as an act of grace. Those familiar with the transformative power of these courses and classrooms believe that education belongs to the inmates as a right; they were simply separated from it, denied it for a period of time, perhaps their entire lives.

At least in public statements that there’s no reason to doubt, the Department of Education is committed to equity for the incarcerated population, not just access to coursework.

To that end, the department expanded what will count as "success” in Pell Grant-eligible programming.

During the experimental phase, measuring higher education’s effect on recidivism was paramount, and almost the only way a Second Chance Pell program could justify itself. While it’s true that education is associated with lower crime rates, this hyperfocus on lower recidivism rates sometimes neglected a conversation about the quality of programming in prisons and kept the public mired in a narrative about which impoverished groups deserved an education and which ones didn't.

Dr. Stanley Andrisse, an assistant professor in physiology and biophysics at Howard University’s College of Medicine -- and formerly incarcerated himself -- was an alternate member of the Department of Education's Office of Postsecondary Education subcommittee on prison education. He told a 2021 subcommittee hearing that even lowered recidivism doesn’t necessarily reflect the quality of the programs inside. According to him, it’s usually the transformation a student undergoes simply by being educated that affects their future behavior.

In other words, even lower quality classes can produce demonstrable change in a person but that’s no excuse for settling for less for this particular group of low-income college students.

Going forward, labor outcomes for released students will figure into program assessments, a shift with meaning beyond data collection. Focusing exclusively on recidivism defines the incarcerated pupil as a future threat. Focusing on work defines that same pupil as a future citizen.

The transition to broader eligibility for Pell Grants won’t be smooth. Many students in prisons awaiting higher education will struggle to get it. Tensions will arise between corrections departments and educators. But it’s still a sharp turn from what’s been happening in these institutions for decades -- a change that’s long overdue.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

'Outdated' Correspondence Courses May Be Just What Prison Students Need

'Outdated' Correspondence Courses May Be Just What Prison Students Need

This is the fourth in a series of five articles on Pell Grant access for incarcerated students funded by a reporting fellowship from the Education Writers Association. Read the first, the second, the third and the fifth in the series.

Emory University professor Sarah Higinbotham knew she had to pivot, and quickly.

COVID restrictions in Georgia prisons, where Higinbotham leads college courses for incarcerated students through an organization she founded called Common Good Atlanta, stood in her way to the classroom. She couldn’t get in to teach.

So she photocopied the lessons, placed them in folders, and dropped them off at the prisons for distribution by the prison staff. Then she and her colleagues picked up students’ homework and replaced the paper-based lesson the next week. Because Common Good Atlanta professors were so nimble, the students ended up not missing a week.

Higinbotham happened upon a solution not only for pandemic restrictions but also the rollout of expanded Pell Grant eligibility: the old-fashioned, paper based or “epistolary” correspondence course where students write the answers to their assignments and send them to professors for evaluation -- who then send back another assignment.

While pandemic restrictions have been lifted on prisons in each of the 50 states, one question still lingers for all educators: What happens when I can’t get in to teach?

It’s a real possibility next summer, when Pell Grant eligibility will be officially restored to incarcerated students, and not because educators will necessarily be blocked from entering facilities; it may be that the new programs simply aren’t approved yet. Prison Education Programs or PEPs may have to wait indeterminate periods of time to go through three — possibly superfluous — levels of approval to offer courses inside.

In theory, correspondence courses could be a solution to this problem, but the federal regulations for PEPs may blunt their potential.

Pell Grants Cover Correspondence Courses

“As of the implementation date of the new regulations [July 1, 2023], otherwise-eligible students can qualify for Pell Grants if they are enrolled in correspondence courses," said David Musser, acting deputy director for oversight of federal student aid at the Department of Education, responding to questions via email. "Nothing in the law or regulations prevents such students from qualifying for Pell on the basis of the modality of their coursework,”

These programs can enter only through the same complex processes. They must undergo approval and monitoring by the correctional oversight entity, plus another approval by the institution’s accrediting agency (in the case of correspondence courses it’s the Higher Learning Commission), as well as approval and monitoring by the federal Department of Education.

“These additional requirements, which were not present in the early 1990s prior to the Crime Bill, may limit the extent to which institutions choose to offer correspondence courses for Pell Grant purposes in carceral settings,” Musser continued.

Pell Grant coverage wasn’t always available for this type of learning. Pell Grants weren’t authorized to finance correspondence courses at all, a reality made clear to schools in the Second Chance Pell Experimental Sites Initiative (Second Chance Pell programs) during the pandemic when they were in the same position as Higinbotham. They couldn’t get inside the facilities.

The Department of Education sent written guidance to all Second Chance Pell programs in the early stages of the pandemic that clarified that lessons sent through the mail, on paper, were not allowed, but those lessons emailed to the prison and printed out by staff counted as “distance education” and were acceptable.

Such extreme hair-splitting made Second Chance Pell programs more careful but also suggested that the ban on correspondence courses might be counterproductive.

Correspondence Courses Are Underway In Prisons

Right now, at least seven schools offer epistolary correspondence courses to prisoners: Adams State University, Ohio University, Upper Iowa University, Colorado State University at Pueblo, Rio Salado College, Thomas Edison State University and California Coast University. Among them, only California Coast University is a private, for-profit institution and, as such, wouldn’t be able to participate in Pell Grant funding under the federal regulations.

The number of students served by these programs is murky. Many correspondence programs simply don’t have that information at hand.

At Upper Iowa University, a self-paced program that will celebrate its 50th anniversary next year, a total of 391 students enrolled in their correspondence course -- and 70 of them were incarcerated.

How many students they have served may not matter as much as their future bandwidth to serve students. In an attempt to prevent schools from developing PEPs to enroll as many incarcerated students as possible to take advantage of the new Pell Grant rules, the Department of Education instituted what’s called the “25% rule” which requires that schools assure that no more than one quarter of their students are incarcerated.

Even with this rule, the Pell Grant opportunities through correspondence courses are significant. Adams State University has about 2000 undergraduate students which leaves them as many as 500 incarcerated Pell Grant slots. Rebecca Knight, independent study coordinator at Colorado State University-Pueblo says she’s confident that the Colorado State University-Pueblo program could accommodate an additional 200 students.

In 2021, Ohio University’s full time enrollment was 18,324; assuming some stability in enrollment, one quarter of that total would open opportunities for more than 4500 students. According to Dawn Novak, Assistant Vice President of Enrollment Management at Upper Iowa University, 25 percent of their student population would amount to about 1000 students.

Pell Grants will cover tuition for students enrolled in degree programs; to maintain eligibility for this type of federal aid. Students must demonstrate satisfactory academic progress or SAP, meaning they have to receive a grade of C or better and pass enough classes to graduate within 150 percent of the normal degree timeline.

This is important because conditions beyond an incarcerated student’s control can interfere with their academic progress. Lockdowns — periods of time where movement within a prison is tightly controlled or even stopped and outsiders can’t enter the facility — can occur at the discretion of corrections officials for almost any length of time.

And they do happen often. The United States Penitentiary at Pollock, Louisiana experienced 16 lockdowns in a 12 month period between 2016 and 2017. They’re so common that the way lockdowns interrupt programming was the number one concern of inmates interviewed by the District of Columbia’s Corrections Information Council.

Evaluating satisfactory academic progress is handled internally at the PEP, where the office of financial aid will determine whether a student is making the necessary headway -- so it’s not as if pupils will be subject to assessment from an antagonistic entity. It’s in the school’s interest that students advance adequately in their studies. However, the regulations governing SAP weren’t modified to accommodate the unusual circumstances incarcerated students face — like lockdowns — an omission criticized by higher education advocates during the regulations’ comment period.

These correspondence courses also may fill holes in PEP programming. Even if PEPs get all the approvals they need, certain degree requirements may have to be taught at a distance. Pell Grants will support the education of those students in degree programs and degree programs often have certain requirements, such as statistics or other competency classes. If there’s no instructor in the area who’s qualified to teach that course, a correspondence course may make the difference in completing a degree on time. Some in-person PEPs may need a particular expert to teach required courses who may be available only at a distance.

“There's a huge need for this stuff, this mode of delivery,” said Jim Bullington, coordinator of the Prison College Program at Adams State University.

That correspondence courses don’t offer the same quality of education as in-person or online learning is a misperception, according to Bullington. While they aren’t preferable to in-person pedagogy, correspondence courses challenge and edify students. Instructors are dedicated and strive to respond to their pupils in the same timeframe as other students.

Modifying Federal Regulations May Help

Students are already trying to enroll in correspondence courses in advance of the 2023 restoration of Pell Grant eligibility and schools will have to turn them away.

“We are worried about getting dumped and swamped and overwhelmed. And we already do have a lot of requests that we have to say no to because just because some students are trying to register right now thinking that Pell Grant money is going to come in, and we just can't do that,” said Knight of her experiences since Congress passed the law expanding eligibility to this class of students.

“The problem is a lot of people [who are incarcerated] think right now that we are going to get immediately, July 1, correspondence [courses] and we'll be able to do it," said Bullington. "And that's just not the case.”

The biggest barrier is the accreditation process. For existing correspondence programs, accreditation is redundant; they’re already accredited by the Higher Learning Commission or HLC and approved through an arrangement called the State Authorization Reciprocity Agreement or SARA order to service students from all over the country.

Said Bullington:“To make us go through the accreditation thing to approve every single facility is literally impossible. You can't do that. So to me, [changing] that regulation would be very big."According to Heather Berg, the Commission’s Vice President of Communications and Engagement, HLC reviews institutions for their ability to offer epistolary correspondence courses and the commission limits approval for correspondence education to courses and one degree or certificate program, although an institution can switch the program it offers via correspondence education with proper notification to HLC.

Of HLC's existing member institutions:

  • 24 institutions or 2% of HLC’s membership are approved for correspondence education courses and programs.
  • 7 institutions or less than 1% of HLC's membership are approved for correspondence education courses and one program.
  • 60 institutions or 6% of HLC's membership are approved for correspondence education courses only, but no certificate or degree programs. These programs may not be eligible for Pell Grant support because this type of aid is restricted to degree or certificate programs.
  • 874 institutions or 91% of HLC's membership have no correspondence approval whatsoever.

HLC can change the correspondence course landscape but it’s the schools themselves that must seek approval and it’s not necessarily a quick process. Substantive change requests, such as an institution seeking approval to offer correspondence education beyond their current situation, may take 6-9 months for review, due process and final action. Schools would need to start the process now to help students take advantage of Pell Grants as soon as possible.

It’s important to note that HLC isn’t necessarily the holdup here. HLC takes action on substantive change requests 10 times a year. In October 2022, HLC took action on more than 75 substantive change requests.

Regulators have already recognized that requiring distance education programs to apply for approval in every state is overly burdensome, which is why they created SARA. The agreement allows members to offer distance education in other member states without having to go through the state’s accreditation processes which are expensive and time consuming. While Rio Salado College and California Coast University aren’t, the remaining five prison correspondence programs are located in SARA-member states; as of July 2019, all states but California have joined SARA.

It’s not just the Department of Education’s bureaucratic burdens that may prevent students from getting an education through correspondence courses. The fact that students can receive Pell Grant aid only if they’re enrolled in a degree or certificate program also might hold them back. If students who are only a few credits shy of a degree or certificate can enroll in non-degree program courses, they may be able to complete a degree started elsewhere through a correspondence program. A key aspect of the Department of Education’s regulations is that all Pell-eligible schooling must be capable of transfer to another institution.

Requiring that a grantee be enrolled in a degree program may block correspondence courses from assisting students in facilities that don't offer PEPs, as might the completion time standards. Most correspondence courses are self-paced; some allow students to take longer because of the unique circumstances of mailing one’s lessons from institutions that aren’t always known for their care and diligence. For these practical reasons, Adams State University allows students one year to complete a course. Upper Iowa University offers four-month extensions for incarcerated students.

But Pell Grants will cover only those students in semester-based degree programs. Changing the regulations or offering waivers to accommodate the realities of prison life or the unique potential of correspondence education might achieve the goals of higher education in prison more quickly and more effectively than clinging to the federal regulations so tightly.

During two days of hearings by the Department of Education’s Office of Postsecondary Education Prison Education Programs Subcommittee’s last year, open forums where questions about implementation received airing, experts discussed correspondence courses only glancingly. They paid little attention to the ways that correspondence courses can further the goal of expanding eligibility for incarcerated students.

Once waitlists begin to frustrate prisoners’ plans for rehabilitation through education next summer, hindsight will likely prove that correspondence courses ought to have played a far larger role in planning for their new Pell Grant eligibility.

Though often seen as antiquated, these modes of teaching hold unique promise for the Department of Education’s goal of expanding prisoners' access to postsecondary classes as soon as possible — and the department is squandering the chance if it doesn’t fix the regulations so correspondence courses can get to work immediately.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

Idealism Of Prison Educators Must Overcome Obstacles To Program Rollout

Idealism Of Prison Educators Must Overcome Obstacles To Program Rollout

This is the third in a series of five articles on Pell Grant access for incarcerated students funded by a reporting fellowship from the Education Writers Association. Read the first, the second, the fourth and the fifth in the series.

Even if corrections departments act promptly and in good faith in approving Prison Education Programs (PEPs) as identified by the now-amended Higher Education Act, a number of factors still stand to trouble the Pell grant restoration to students in jails and prisons.

Approval Backlog And Lack Of Capacity

Demand will outstrip supply of quality postsecondary education in correctional facilities.

While the Second Chance Pell Experimental Sites Initiative (Second Chance Pell programs) will continue as they have been, at least for a while, any schools beyond those original 200 that were included in the original experiment will need to be newly approved, three times over. Once by the accrediting agency that has already certified the school (the PEP program requires its own accreditation) the correctional authority and the Department of Education must approve it as well.

It’s unclear how long this will take — the accreditation process alone can take years — because it hasn’t really started yet. As of mid-December 2022, the form to start the approval process had not yet been created by the Department of Education, so no educational institution has begun its bid to provide postsecondary education behind bars, much less been approved to run a PEP.

Second Chance Pell programs may be at an advantage in this process, as opposed to schools trying to create a PEP from scratch, because those programs already underwent an accreditation process — which makes them familiar with it — and obtained approval from the federal Department of Education.

Even with approval, schools may offer only a few openings; some Second Chance Pell programs worked with as few as ten students.

This will inevitably lead to a waitlist, one that may be longer than an aspiring student has in the facility, according to Terrell Blount, who directs the Formerly Incarcerated College Graduates Network, a Tacoma, Washington-based nonprofit. Blount was a member of the 2021 Negotiated Rulemaking Prison Education Programs Subcommittee.

"Some people…will be on that waitlist until they are released," he said. "And that's where we [the Formerly Incarcerated College Graduates Network] come into play, because we want to be able to reach those students who don't get a chance to enroll because of space issues, because there's no seats available.”

Wasting one’s opportunities while languishing on a list will be less of a consideration in facilities managed by the federal Bureau of Prisons; the average federal prison sentence is over ten years: 147 months. Inmates may have time to wait to take classes, although there’s already a long line ahead of them. Data from the National Center for Education Statistics indicate that 25 percent of eligible inmates are biding time on a list for their chance to sit in a classroom.

State sentences are considerably shorter, making waitlists more of a barrier. Across all crime categories, people discharged from prison in 2018 served a median sentence of 1.3 years, according to the Pew Research Center. Two semesters on a waitlist may block a prisoner from even starting his education inside.

Lack Of Available Physical Space

Because these classes happen in correctional facilities, PEPs will need to access classrooms. Facilities may not be able to accommodate as many PEPs and all their courses since classroom space is finite and course offerings and even college programs will be expanding.

The recent spate of prison closures makes this problem even more pronounced. In New York, Gov. Kathy Hochul noted that many of the state’s facilities are only half full. To Hochul, consolidating them and closing some has presented itself as an option worth considering. California’s Department of Correction and Rehabilitation is closing both Chuckawalla Valley State Prison and California City Correctional Facility in Kern County, inevitably leaving programs vying for classroom space.

Dr. Erin S. Corbett, founder and executive director of the Second Chance Educational Alliance, an educational reentry program operating in Connecticut prisons, doesn’t see space as much of a limiting consideration as others.

“I think for some states it's real…But because [the Department of Correction] keeps saying [space is a problem], people have internalized it because … that's something objective that we can all maybe agree on,” Corbett said of space inside prisons.

But Corbett has seen available, empty classrooms inside prisons. "Limited space" may provide a convenient excuse for a lack of institutional support.

“There are all these empty classrooms," said Corbett. "Why can't we use these classrooms? What we are told is that the [prison high school] teachers will not allow us to use their classrooms.”

Infiltration By Profit-Seeking Bad Actors

Many educators, advocates and stakeholders are perplexed by the prospect of a new funding stream attracting schools that don’t run their programs with integrity.

The federal regulations explicitly exclude for-profit schools from applying to establish PEPs. But even schools that don’t operate with an eye toward making money may be drawn into the post-secondary prison education game.

Aaron T. Kinzel, lecturer on criminology at the University of Michigan-Dearborn and former fellow with the Corrections Education Leadership Academy of the Vera Institute of Justice, fears that schools will see prisoners’ restored Pell grant eligibility as a “potential cash cow” that can replace tuition they lost through dwindling enrollment.

The recent pandemic dips in enrollment weren’t as dramatic as predicted. According to the National Student Clearinghouse Research Center, colleges and universities in the United States experienced a drop of just 1.1% of undergraduate students between the fall of 2021 and 2022.

This wasn’t really news; matriculation has been down every year since 2019 for an overall reduction of six percent. College registrars now count one million fewer students in their records.

To compensate for those missing students -- and their tuition payments -- schools without a proven or strong commitment to quality education may be drawn into the prison education space.

Federal regulations cap the number of incarcerated students at 25 percent of the total student population, so limits already in place can prevent this.

Besides, PEPs aren’t the place to profit. Dr. Sarah Tahamont, assistant professor of criminology and criminal justice at the University of Maryland, thinks the cost of starting a PEP is so prohibitive that she doesn’t identify profiteering as a risk.

“I don't see how that could be possible. It works out best when it's more mission driven...invest in it and find ways not only to fund it via Pell Grants but also via other sources, whether that is from the university or from philanthropy or other areas,” she said.

As a practical matter, there’s no other federal aid available to incarcerated students besides the Pell Grant.

Technically, neither Federal Work Study nor Federal Supplemental Educational Opportunity Grant (FSEOG) was ever banned for incarcerated students, but applying for those programs required being a Federal Pell Grant recipient. Even with their newfound eligibility for Pell Grants, incarcerated students are unlikely to get an FSEOG, which is reserved for students most in need, such as those in danger of homelessness. Federal Work Study grants require students to work outside their college facilities, a logistical impossibility for prisoners.

According to the Education Commission of the States, 19 of the nation's 52 states and jurisdictions offer state-based financial aid to incarcerated students, but many of them are also tied to Pell Grant eligibility. Some states, like Wisconsin, offer state aid and continued to do so throughout the 28 years that Pell Grants didn’t support education in prisons. But most states did not.

Even with Pell Grants becoming available, PEP’s are an expensive venture. The large colleges and universities already offering college education would not disclose their operating costs but the grants they seek and receive are large. The Ford Foundation granted the Bard Prison Initiative $1 million dollars in 2015 to expand its core operations. Last year, a partnership between The Yale Prison Education Initiative and the University of New Haven secured a three-year, $1.5 million grant from The Andrew W. Mellon Foundation, along with The Prison Project at Quinnipiac University, which received $364,000 from the same foundation.

In the end, PEPs will have to cover whatever costs the Pell Grants don’t. This particular type of financial aid can cover tuition, fees, and books but the typical grant isn’t sufficient to pay for everything; the PEP’s home university makes up the difference. Virtually every PEP picks up a hefty tab.

For many Second Chance Pell programs, when students either didn’t have the required information — a Social Security number, tax information, an aggregation of their prison wages (they must report their wages even though the total often is not enough for the prison to issue them a W-2 Wage and Tax Statement) — for the old FAFSA, the program would simply forgo the Pell assistance for that student and cover the cost of his education itself.

There’s another reason why financially struggling colleges may not come marauding the flow of Pell Grant dollars inside prisons. Higher education in carceral spaces is a matter of deep moral and ethical conviction. It attracts people who believe in the students and believe in higher education’s potential for transformation. Running a program in prison is far from easy for anyone, especially school officials unfamiliar with that kind of work.

“Operating a college campus inside a prison is a totally different thing than operating one that is not subject to the constraints of correctional officials for a variety of reasons," said Tahamont. "It is an evolving practice. And there's a whole field of people that are dedicated to trying to figure out what are the best ways to deliver higher education in a quality manner inside a prison, subject to the constraints that are imposed by prison."

Solutions to these problems not only exist, but can be developed over time during implementation.

“The federal government has done what we asked in regard to restoring Pell Grant access," said Blount. "That's going to open up a lot more opportunities for people. Right now, I think our time is better spent going toward figuring out how to best implement programs."

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.