By Alex W. Chemerinsky
In the fall of 2005, the Louisiana Department of Corrections lost thousands of inmates. These inmates did not graduate from the system, they did not pass away, and they did not simply disappear, but for all intents and purposes they may as well have. Most were non-violent offenders and many had never been convicted of a crime. These people were just in the wrong place at the wrong time – they happened to be in Orleans Parish Prison (OPP) on August 29, 2005, when Hurricane Katrina hit New Orleans. As former Orleans public defender, Emilia Beskind, observed, inmates that should only have been in prison for the night spent months in jail with no regard for their rights.
When Hurricane Katrina made landfall, there were 6,375 prisoners in OPP. More than 1,000 of these inmates were women and some were children as young as ten. Ninety percent were black. After New Orleans Mayor Ray Nagin and Louisiana Governor Kathleen Blanco announced a mandatory evacuation of the area, Orleans Parish Sheriff Marlin Gusman declared that the prisoners would stay in the prison, “where they belong.” Gusman called for a “vertical evacuation” plan, where the prisoners, guards, and the guards’ families would flee to the upper floors of the prison as floodwaters rose.
By the time that the prison instituted the plan, some inmates on the lowest floors were, quite literally, treading water. The generators failed. Food and potable water were scarce. Eventually the prisoners were evacuated by dinghy, six at a time, to the nearby Broad Street overpass. Over 3,500 inmates and 300 guards sweltered on that overpass in ninety-five degree heat with little food or water for five days until, on Saturday, September 4, the inmates were bussed to Elayn Hunt Correction Facility in St. Gabriel, Louisiana. And that’s when they were lost.
Beskind explains, “they were taken [from Elayn Hunt] to state prisons or state jails in other parts of Louisiana … They just got lost. They were not identifiable. They could say ‘my name is John Smith’ as much as they wanted, but since they couldn’t prove that they were that John Smith or that they were John Smith at all, they could have been serving a ten day sentence for loitering but they just got stuck in prison for months and months and months.” These extended sentences became known as “Katrina Time.”
A 2006 report by the American Civil Liberties Union’s National Prison Project, which details the experiences of thousands of Katrina Time inmates, describes the story of Ivy Gisclair. On August 29, Gisclair was being held at OPP for $700 in traffic and parking tickets. He was at OPP when the floodwaters hit, was transferred to Elayn Hunt with the other prisoners and then moved to Bossier Parish Maximum Security Prison. After his scheduled release day came and went, Gisclair complained to a guard. Instead of being released, the ACLU found, he “was pepper sprayed, repeatedly shocked with a Taser, beaten by multiple guards, and put in solitary confinement with no clothes.” Gisclair and thousands of other prisoners’ humanity was washed away like so many of the Ninth Ward houses that they once called home.
With the courthouse and jail flooded, communication systems useless, inmates spread out across Louisiana’s many prisons, and criminal defense lawyers scattered across the country, the New Orleans justice system was in ruins.
Tulane University law professor, Pamela Metzger, was at the center of the recovery effort for indigent defendents. Metzger and her clinic, along with a Loyola law school clinic, were appointed by a judge to represent all of the Orleans Parish inmates who did not have lawyers. Professors and students who were themselves recovering from the storm, were responsible for upholding the legal rights of “somewhere in the range of eight thousand people, plus all the new arrests.”
The clinics had to take on this responsibility, in part, because of serious problems with the way the public defender’s office was set up at the time. Metzger says that, “in the old system, defenders were part-time.” They had to take on paying clients in order to support themselves. “This meant that you had lawyers who their private clients were competing for attention with their public clients.” Nonpaying clients sometimes lost out, even when the system was operating normally. Worse, at the time, the public defender’s office was funded in large part by traffic citations. Beskind complains, “when the storm hit, traffic tickets stopped. The money stopped. The public defender’s office – which, by the way, is way underfunded anyway – didn’t have any money coming in.” And so underpaid and overworked lawyers, most of whom lost their own homes and offices in the storm and scattered across the country, stopped representing indigent criminal defendants at all.
One of the primary objectives of the clinics and, later, the public defender’s office, was to actually figure out which inmates were where. One problem according to Metzger was that “the public defender’s office did not keep a client list. So there was no way to know who they were and a lot of the inmates had these ID bracelets and a lot of the inmates swapped bracelets thinking somehow that was going to help them. So there was really no way to tell who was who and then there were no files.”
Even once the volunteers began tracking down the lost inmates, there was no easy way to help them out of jail. Beskind rattled off an endless list of problems facing the few lawyers who were able to help inmates serving “Katrina Time: there was no court system in New Orleans. At all. It got wiped away. There were no judges, no regular hearings.” As the floodwaters receded, “they were eventually set up in another place but that took a long time, then it was hard to get the inmates there and it was hard to move people.”
The inmates lucky enough to be “found” by the legal clinics discovered that getting in front of a judge was almost impossible. The dockets were overloaded and the court system did not have a way to contact the attorneys who had represented the inmates before the storm.
The evidence room in the basement of the courthouse flooded. Beskind says, “it caused some cases to go away. Sometimes cases got dismissed. Some cases got less evidence than they should have had and I worry that harmed defendants because some of that evidence, like rape kits and DNA, can actually favor defendants who are innocent.” And, all of these problems were compounded by the fact that releasing prisoners who had completed their sentences “was nobody’s first priority.”
“So people who were in for drunk and disorderly ended up doing months just sitting in random jails, where their families didn’t know where they were, just waiting for a court to catch up to them.”
Katrina Time did not need to happen. The human rights disaster in Louisiana’s prisons following the storm was a product of a wildly underprepared and disorganized system. Metzger says that, once the storm hit, “the only thing that could have been done to improve [the problem] is that the prosecutor could have been far more reasonable … we asked very early on to have them release all the non-violent misdemeanors, so we could start focusing on people who had serious cases that had to be resolved.” But, she says, the district attorney – who she did not refer to by name – refused. Only once that district attorney stepped down were they “able to move forward” in releasing prisoners who had served their sentences.
Both Metzger and Beskind believe that racism played a large role in the way that officials handled Katrina Time inmates. Metzger recalls an agreement between various Louisiana sheriffs and the Department of Corrections that called for prisoners to be released, not at the prisons, but in the devastated remains of New Orleans. Prisoners that had spent months, or even years, behind bars were dropped into a community with no standing infrastructure to support them. She “believe[s] that had very much to do with some populations not wanting to see African-American men wandering around their community with nowhere to go.” Beskind echoed, “I do think that these were easy people to get lost. Their families did not have either the money or the resources when they were in dire straights themselves to cause a political stink to make sure the problem got to the top of the list … This ended up at the bottom of the list and I think race is one of the reasons that it did.”
According to Beskind, the effects of Katrina on criminal justice did not end in 2005, or even 2006. “A lot of people, to this day, have warrants pending that they have no knowledge of … [P]eople would get picked up on extremely old warrants from, you know, 2005, which they received no notice of their court date because they did not live there.” So courts would issue arrest warrants for failing to make court appearances that people never were informed they were required to make. Moreover, Beskind explained, the trauma of the prison experience during Katrina Time persists. “One of the most common things we saw in New Orleans – I have been a public defender in the District of Columbia and North Carolina and do not see as often – was PTSD, Post-Traumatic Stress Disorder … when we had people worked up you would often find that they had PTSD stemming from Katrina.” Those suffering from PTSD following their release, she added, may also have been more likely to pick up a felony charge that would have a significant detrimental effect on their lives.
Because Hurricane Katrina was a disaster of unprecedented proportions, some have argued that it is understandable that some constitutional rights were suspended temporarily. But the Supreme Court and independent legal scholars, alike, have explained that a crisis does not justify suspending the Constitution. Georgetown law professor and incoming National Legal Director of the ACLU, David Cole, declared, “it is in times of crisis that constitutional rights and liberties are most needed.” Justice Anthony Kennedy, writing for the Supreme Court in Boumediene v. Bush, stated “the laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”
Fortunately, both Beskind and Metzger believe that some, but not all, of the systemic flaws that led to a problem like Katrina Time have been addressed by new emergency preparedness plans. For example, Beskind points out that the inmates in OPP were evacuated in the week before Hurricane Isaac made landfall in 2012. She said that this is what “should have been what happened during Katrina. So they do take steps now, they take it very seriously.” Beskind nevertheless cautions that problems remain. If, for example, in 2016 Hurricane Matthew had turned to the west, she is not convinced that the new hurricane contingency plan would work perfectly. “That has not been my experience with the New Orleans jail.” Metzger believes that many of the problems in the public defender’s office have been resolved. “Lawyers are now full-time and the public defender’s office has secured other modes of funding.” She adds that the public defender’s office now operates based on the ABA’s ten principles for good practice, which prioritizes service to clients over court convenience. But evidence could still be lost in the flood, said Metzger, “I just visited the property room, which is still in the basement of the courthouse.”
Katrina Time caused many to be wrongly incarcerated for months. But it has been largely ignored. There has been little to no public attention or reparations paid to the thousands of men and women who lost their freedom without due process of law. Beskind and Metzger believe that important steps have been made to make sure that this injustice is not repeated, but they both believe work remains to be done.