Just Mercy (34 page)

The hysteria surrounding bad mothers made a fair trial for Marsha Colbey very difficult. During jury selection, numerous jurors announced that they could not be impartial toward Mrs. Colbey.
Some jurors indicated that they found allegations of killing a child so disturbing that they could not honor the presumption of innocence.
Several revealed that they had such a close relationship with one of the state investigators—a key State witness who had been especially vocal about identifying bad mothers—that they would give him “instant credibility” and would “believe everything [he] said was credible.”
Another juror admitted trusting law enforcement witnesses he knew to the point where he would “believe anything they say.”

The trial court allowed almost all of these jurors to remain on the jury panel despite defense objections. Ultimately, a jury who brought many presumptions and biases to the trial of Marsha Colbey was selected to decide her fate.

The jury returned a verdict of guilty on one count of capital murder. Prior to rendering a verdict, jurors expressed concerns about Mrs. Colbey being subject to the death penalty, so the State agreed not to pursue an execution if she was found guilty. This concession yielded an immediate conviction. The trial court sentenced Mrs. Colbey to life imprisonment without the possibility of parole, and a short while later she found herself shackled in a prison van heading to the Julia Tutwiler Prison for Women.

Built in the 1940s, Tutwiler Prison is situated in Wetumpka, Alabama. Named after a woman who promoted the education of prisoners and championed humane conditions of confinement, Tutwiler has become an overcrowded, dangerous nightmare for the women trapped there. Courts have repeatedly found the prison unconstitutionally overcrowded, with almost twice the number of women incarcerated as it was designed to hold. In the United States, the number of women sent to prison increased 646 percent between 1980 and 2010, a rate of
increase 1.5 times higher than the rate for men. With close to two hundred thousand women in jails and prisons in America and over a million women under the supervision or control of the criminal justice system, the incarceration of women has reached record levels.

At Tutwiler, women are crammed into dormitories and improvised living spaces. Marsha was shocked by the overcrowding. As the only state prison for women, Tutwiler has no way to meaningfully classify and assign women to appropriate dorms. Women battling serious mental illness or severe emotional problems are thrown in with other women, making dorm life chaotic and stressful for everyone. Marsha could never quite get used to hearing women screaming and hollering inexplicably throughout the night in a crowded dorm.

Most incarcerated women—nearly two-thirds—are in prison for nonviolent, low-level drug crimes or property crimes. Drug laws in particular have had a huge impact on the number of women sent to prison. “Three strikes” laws have also played a considerable role. I started challenging conditions of confinement at Tutwiler in the mid-1980s as a young attorney with the Southern Prisoners Defense Committee. At the time, I was shocked to find women in prison for such minor offenses. One of the first incarcerated women I ever met was a young mother who was serving a long prison sentence for writing checks to buy her three young children Christmas gifts without sufficient funds in her account. Like a character in a Victor Hugo novel, she tearfully explained her heartbreaking tale to me. I couldn’t accept the truth of what she was saying until I checked her file and discovered that she had, in fact, been convicted and sentenced to over ten years in prison for writing five checks, including three to Toys “R” Us. None of the checks was for more than $150. She was not unique. Thousands of women have been sentenced to lengthy terms in prison for writing bad checks or for minor property crimes that trigger mandatory minimum sentences.

The collateral consequences of incarcerating women are significant.
Approximately 75 to 80 percent of incarcerated women are mothers with minor children. Nearly 65 percent had minor children
living with them at the time of their arrest—children who have become more vulnerable and at-risk as a result of their mother’s incarceration and will remain so for the rest of their lives, even after their mothers come home. In 1996, Congress passed welfare reform legislation that gratuitously included a provision that authorized states to ban people with drug convictions from public benefits and welfare. The population most affected by this misguided law is formerly incarcerated women with children, most of whom were imprisoned for drug crimes. These women and their children can no longer live in public housing, receive food stamps, or access basic services. In the last twenty years, we’ve created a new class of “untouchables” in American society, made up of our most vulnerable mothers and their children.

Marsha wandered through her first days at Tutwiler in a state of disbelief. She met other women like herself who had been imprisoned after having given birth to stillborn babies. Efernia McClendon, a young black teenager from Opelika, Alabama, got pregnant in high school and didn’t tell her parents. She delivered at just over five months and left the stillborn baby’s remains in a drainage ditch. When they were discovered, she was interrogated by police until she acknowledged that she couldn’t be 100 percent sure the infant hadn’t moved before death, even though the premature delivery made viability extremely unlikely. Threatened with the death penalty, she joined a growing community of women imprisoned for having unplanned pregnancies and bad judgment.

The lives and the suffering of the women got tangled together at Tutwiler. For Marsha, it was impossible not to notice that some women never got visits. She tried at first but couldn’t remain indifferent to the people around her who seemed in acute distress—those who cried more than usual or who suffered the greatest anxiety about the children or parents they’d left behind or who seemed especially down or depressed. Knitted together as they were, a horrible day for one woman would inevitably become a horrible day for everyone. The only consolation in such an arrangement was that joyous moments
were shared as well. A grant of parole, the arrival of a hoped-for letter, a visit from a long-absent family member would lift everyone’s spirits.

If the struggles of the other women had been Marsha’s biggest challenge at Tutwiler, her years there would have been difficult but manageable. But there were bigger problems, coming from the correctional staff itself. Women at Tutwiler were being raped by prison guards. Women were being sexually harassed, exploited, abused, and assaulted by male officers in countless ways. The male warden allowed the male guards entry into the showers during prison counts. Officers leered at the naked women and made crude comments and suggestive threats. Women had no privacy in the bathrooms, where male officers could watch them use the toilet. There were dark corners and hallways—terrifying spaces at Tutwiler where women could be beaten or sexually assaulted. EJI had asked the Department of Corrections to install security cameras in the dorms, but they refused. The culture of sexual violence was so pervasive that even the prison chaplain was sexually assaulting women when they came to the chapel.

Shortly after Marsha arrived at Tutwiler, we won the release of Diane Jones, who had been wrongly convicted and sentenced to die in prison for a crime she had not committed. Diane had been wrongly implicated in a drug-trafficking operation that involved her former boyfriend. She was convicted of multiple charges that triggered a sentence of mandatory life imprisonment without parole. We challenged her conviction and sentence and ultimately won her release. The release of Diane Jones, a condemned lifer, gave hope to all of the other lifers at Tutwiler. I received letters from women I’d never met thanking me for helping her. While working on her case, I’d go to Tutwiler to meet with Diane, who would tell me how the women were desperate for help.

“Bryan, I have about nine notes people want me to pass to you. It was too many to get past the guards so I didn’t bring them, but these women want your help.”

“Well, don’t try to smuggle notes. They can write us.”

“Well, some say they have written.”

“We’re swamped, Diane. I’m sorry, but we’ll try to reply.”

“I’m mostly worried about the lifers. They’re the ones who will die in here.”

“We’re trying—there is only so much we can do.”

“I tell them that, I know. They’re just desperate, like I was desperate before y’all helped me. Marsha, Ashley, Monica, Patricia are sweatin’ me to have you send someone to help.”

We met Marsha Colbey shortly after that and began working on her appeal. We decided to challenge the State’s case and the way the jury had been selected. Charlotte Morrison, a Rhodes Scholar and former student of mine, was now a senior attorney at EJI. She and staff attorney Kristen Nelson, a Harvard Law grad who had worked at the Public Defender Service for the District of Columbia, the nation’s premier public defender office, met with Marsha repeatedly. She would talk about her case, the challenge of keeping her family together while she was in prison, and a range of other problems. But it was the sexual violence at Tutwiler that most frequently came up during these visits.

Charlotte and I took on the case of another woman who had filed a federal civil suit after she was raped at Tutwiler. She had had no legal help; because of defects in her pleadings and the allegations she made in her complaint, we could secure only a small settlement judgment for her. But the details of her experience were so painful that we could no longer look past the violence. We started an investigation for which we interviewed over fifty women; we were truly shocked to see how widespread the problem of sexual violence had become. Several women had been raped and become pregnant. Even when DNA testing confirmed that male officers were the fathers of these children, very little was done about it. Some officers who had received multiple sexual assault complaints were temporarily reassigned to other duties or other prisons, only to wind up back at Tutwiler, where they continued to prey on women. We eventually filed a complaint with the U.S.
Department of Justice and released several public reports about the problem, which received widespread media coverage. Tutwiler made a list of the ten worst prisons in America compiled by
Mother Jones;
it was the only women’s facility to be so dishonored. Legislative hearings and policy changes at the prison followed. Male guards are now banned from the shower areas and toilets, and a new warden has taken over the facility.

Marsha held on despite these challenges and started advocating for some of the younger women. We were devastated when the Court of Criminal Appeals issued a ruling affirming her conviction and sentence. We sought review in the Alabama Supreme Court and won a new trial based on the trial judge’s refusal to exclude people from jury service who were biased and could not be impartial. Marsha and our team were thrilled, local officials in Baldwin County less so. They were threatening re-prosecution. We involved expert pathologists and persuaded local authorities that there was no basis on which to convict Marsha of murder. It took two years to settle the legal case and then another year of wrangling with the Department of Corrections to give Marsha full credit for the time she’d served before she was finally freed in December 2012 after ten years of wrongful imprisonment.

We had started holding annual benefit dinners each March in New York City to raise money for EJI. We usually honored a luminary in public service and a client. We’d previously honored Marian Wright Edelman, the heroic civil rights lawyer and founder of the Children’s Defense Fund. In 2011, we honored retired U.S. Supreme Court Justice John Paul Stevens. I had met Justice Stevens at a small conference when I was a young lawyer, and he had been extremely kind to me. By the time he retired, he’d become the Court’s most vocal critic of excessive punishment and mass incarceration. In 2013, along with Marsha Colbey, we decided to honor the charismatic former director of the NAACP Legal Defense Fund, Elaine Jones, and the progressive ice-cream icons Ben (Cohen) and Jerry (Greenfield). Roberta Flack, the legendary singer and songwriter, agreed to perform. She sang the
George Harrison tune “Isn’t It a Pity” before it was time to present our award to Marsha.

In my introduction, I told the audience how, on the day of her release from Tutwiler, Marsha had come to the office to thank everyone. Her husband and her two daughters had picked her up at Tutwiler. Her youngest daughter, who was about twelve, had reduced most of our staff to tears because she refused to let go of her mother the entire time she was in the office. She clung to Marsha’s waist, kept hold of her arm, and leaned into her as if she intended never to let anyone physically separate them ever again. We took pictures with Marsha and some of the staff, and her daughter is in every shot because she refused to let her mother go. That told us a lot about what kind of mom Marsha Colbey was. Marsha took the podium in her lovely blue dress.

“I want to thank all of you for recognizing me and what I’ve been through. Y’all are being very kind to me. I’m just happy to be free.” She spoke to the large audience calmly and with a great deal of composure. She was articulate and charming. She became emotional only when she talked about the women she’d left behind.

“I am lucky. I got help that most women can’t get. It’s what bothers me the most now, knowing that they are still there and I’m home. I hope we can do more to help more people.” Her gown sparkled in the lights, and the audience rose to applaud Marsha as she wept for the women she’d left behind.

Following her, I couldn’t think of what to say. “We need more hope. We need more mercy. We need more justice.”

I then introduced Elaine Jones, who began with, “Marsha Colbey—isn’t she a beautiful thing?”