An inmate fights to be safe in prison
by John P. Flannery
I filed this petition for a conditional pardon for Aman Singh Lail, an inmate at Deerfield Correctional, with the Virginia Secretary of the Commonwealth, because the Virginia prison system is deciding who will be safe from the virus and who will not.
But the prison system is not concerned about Mr. Lail, who has preconditions that put him at risk to this virus.
Also, neither Mr. Lail, nor any other inmate or prison staffer should live in fear for his or her life.
I’m posting our pleadings with Aman’s knowledge and consent because he wants others to know what’s going on and that perhaps, in this way, what we filed in court on behalf of Aman may help some other inmate or prison staffer.
(We have not included certain papers and the exhibits because some of that information is confidential, but all the arguments remain clear without that information.)
SECRETARY OF THE COMMONWEALTH
In the matter of an emergency petition
for a conditional pardon for —
AMAN SINGH LAIL,
Petitioner. :
EMERGENCY PETITION FOR CONDITIONAL PARDON
________________
COMES NOW AMAN SINGH LAIL, the petitioner herein, by undersigned counsel, John P. Flannery, II, Esq, to make this emergency petition for a conditional pardon given there are extraordinary circumstances to justify it, namely the coronavirus, putting petitioner’s health and life at risk, and because it is unconstitutional for the state to be deliberately indifferent to his life and safety while he is in custody in Deerfield Correctional Center in Capron, VA, where the coronavirus has been detected, and he cannot protect himself, and, worse, he suffers from preconditions involving his heart (high blood pressure) and lungs (asthma) that necessarily put him at high risk for infection and even death; and, while Aman is not a short termer, with a remaining sentence of a year or less, he is an excellent candidate for home confinement with a gps ankle monitor for the remainder of his term; in support of this petition, Petitioner Lail has completed the appropriate form (questionnaire), attached hereto, with responses to the areas further enumerated in said form, and with responsive exhibits to assist in that assignment, and does hereafter discuss the argument and facts material to this petition for a conditional pardon:
1. THE PRISON MUST CARE FOR ITS INMATES — OR FIND AN ALTERNATIVE THAT DOES — INCLUDING RELEASE TO HOME CONFINEMENT, IN THIS CASE, WITH AMAN LAIL’S FAMILY, ON A GPS ANKLE MONITOR. Aman Singh Lail makes this request for a conditional pardon on the basis that the state may not be deliberately indifferent to his safety while in custody. Aman is not a short termer but he has medical preconditions involving his heart and lungs that put him in a higher risk category for the coronavirus. While Aman is not a short termer, he is a perfect candidate for home confinement with a gps ankle monitor.
2. THE CHARGE. The circumstances of Aman’s charge are involuntary manslaughter, meaning that 6 years and 4 months ago, his addiction to drink, caused a tragic event in an automobile crash. Ex. 9, pp. 3–35. Only a year earlier, Aman lost his close friend to an accident in about the same place. Ex. 10, pp. 36–37. His friend’s death contributed to his depression and drinking then. Aman has never cited this as an excuse or defense but it is the fact.
3. THE SENTENCING GUIDELINES. Still, Aman’s offense, and his prior conduct, and all the factors prompted a sentencing guideline range from 3 years 3 months to 7 years 10 months. Ex. 16, pp. 60–64.
4. EXCEEDED. Yet the court imposed confinement higher than the guidelines, for 12 years. If you round out the maximum of the guidelines up to 8 years, Aman got a sentence of 12 years that was 150% greater than the guidelines provided (12/8).
5. COMPARED WITH OTHER CASES. Every one of these traffic cases resulting in death is a heart breaker and rightly emotional but another defendant in another case in the same court house before a different judge got 7 years for involuntary manslaughter. Ex. 19, pp. 71–77. The man who ran over my secretary in Loudoun County, charged with involuntary manslaughter, after a trial, got a 6 year sentence. Ex. 20, pp. 78–82.
6. It’s a horrible crime, devastating, like an act of nature because the offender is an involuntary person, but still deserves punishment, though he may be ill himself at the time the offense is committed. On the other hand, when setting the punishment, do the guidelines mean something or nothing at all? The guidelines can’t be mere “suggestions.” Our courts of appeal make it sound like the guidelines are available to justify a sentence in some cases, and to ignore them otherwise.. They are purportedly based on a fair amount of data points, statistically significant samples, especially when it comes to traffic offenses, a guide to what’s fair and just in a specific case as compared to others, and thus instructive when a judicial officer exercises his or her discretion and weighs the emotional circumstances of an innocent death in one case against what’s been fair and just in other cases. It’s the same principle we follow when looking at the teaching of earlier cases, stare decisis, but this is not about the law, it’s about sentencing.
7. I know something about this. When I saw the man who involuntarily killed my friend and secretary, he was such a lost soul, appeared pathetic, and, well, more like an act of nature.
8. Since that time 6 years and 4 months ago, Aman has become a different man and would be a candidate for a pardon even if his health and life were not at stake because of the coronavirus.
9. THE UNCONSTITUTIONAL VIOLATION OF AMAN LEIL’s RIGHTS. The state may not keep Aman Lail or any other inmate for that matter, in custody in a prison or jail when it knows it can’t provide for his medical care, when he can’t fend for himself, and the prison or jail can’t protect the inmate from disease, knows that it can’t, is releasing inmates because it knows that, and because we have all seen what has gone on in the nation, and is underway in the Virginia prison system, the scourge that is the coronavirus that has brought nation-states around the world to their knees.
10. The failure of the prison system to save Aman, and others, from what they can’t protect themselves against, is a violation of the 8th Amendment of the U.S. Constitution, and, by the words of that amendment, constitutes “cruel and unusual punishment.”
11. VA Stats. Consider those in the VA prison system who have already been infected and suffered, and we can’t overlook that we already have one person who has died, a staffer who works in the prison system, vulnerable because of her heart condition. Ex 2, pp. 4–5, and Ex. 3, pp 8–9.
12. Stats from several days ago, April 8, report that 41 inmates and staff in the statewide system were infected. Ex. 2, pp. 4–5.
13. Consider that one staffer has been infected at Deerfield where Aman is incarcerated; and there is evidence, not reported, now days ago, drawn from the institution, that there were two inmates at that same facility who were also infected. Ex. 2, pp 4–5.
14. It will get worse. We are on notice that more infections and deaths will follow from what we’ve observed in other prisons and jails across the nation. In the federal system, and this is days ago, there were 1,324 inmates infected, and 32 deaths; the infection rate is about 7% of the population. Timothy Williams, “Chicago’s Jail is Top US Hot Spot as Virus Spreads behind bars,” NY Times (April 8, 2020). In Illinois, on March 23rd, there were 2 infected inmates in the Cook County Jail, but two weeks later, there were more than 350 people infected. Id. In Michigan, the infection rate remains about 8%, according to the Legal Aid Society; 162 infected, and 2 died. Angie Jackson, “The High COVID-19 Infection Rate at this Michigan Prison Fearing for their Health,” BuzzFeed News (April 16, 2020). Philadelphia has now released 531 inmates and approved a release of up to 1,800 state prisoners because of the infections and deaths. Claudia Vargas, “Prisoners Being Released from City, State Prisons are not being tested for COVID-19,” NBC News (April 17, 2020). There is hardly a jurisdiction that has not had infections and deaths and hasn’t released inmates because the prisons and jail can’t protect the inmates.
15. The Commonwealth knows it has a problem because the Governor Northam admitted as much. He stated he would not issue an executive order but that he would consider pardons and parole requests. Ex. 4, p. 12.
16. The Governor further announced that he would release those with a year or less to serve, about 2,000 inmates to mitigate the spread but that policy cannot take effect unless and until the General Assembly takes it up on April 22nd; in the meantime, the virus spreads. Ex. 5, p. 14.
17. Unfortunately, there is no provision for those who are especially vulnerable to the virus including Aman and other inmates who have more than a year to spend on whatever sentence was imposed.
18. Those who are left in the system are hardly experiencing anything like social distance. A woman at the Virginia Correctional Center in Chesapeake said the inmates are locked in their pod day after day; she said, “The officers come and go and there [is] no social distancing and we are sleeping on top of each other… Yes, we are scared to death and no one tells us anything…We are like roaches.” Ex. 5, p. 16.
19. Legislators insist more needs to be done. Ex. 5, p. 18.
20. The ACLU of Virginia has asked the Governor to use his clemency powers for those inmates who are most at risk of contracting the virus — the elderly and those with pre-existing conditions — and who have two years or less of their sentence to complete.” Ex. 6, p.23.
21. ACLU Executive Director Claire Castanaga has called for clemency for any inmate who doesn’t pose a direct, imminent and serious threat of physical injury to someone to be included for consideration of release. Ex. 6, 24.
22. The Legal Aid Justice Center asked the Governor to “examine all release processes and mechanisms under their control and begin employing them liberally and expeditiously.” Ex. 6, 24.
23. Ms. Castanaga said, “The idea that the right answer is we should keep people in an environment in which they could die because we haven’t done the job we need to do to create meaningful opportunities for them to be released into a safe space … we need to be morally accountable for that, and we need to assume that that’s a challenge, not a barrier.” Ex. 6, 26.
24. The prisons and jails are too densely populated to resist the virus.
25. The statewide strategy for prisons and jails is to limit somewhat those who may get sick or die, but, at the same time, accept the fact that others will get sick and some will die.
26. The Commonwealth knows that it doesn’t have the resources to make this work in any way, shape or form, not the tests it needs, not the PPE (Personal protective equipment), not the masks for inmates or staff, nor the gloves, nor the ventilators, nor the medical staff, nor the hospitals nearby to take care of these inmates. That is absolutely the case at Deerfield where Aman is incarcerated.
27. If anyone wants proof the current system is hardly fail safe, consider the fact that the system was not able to protect the inmates and staff who have become infected, nor the one woman staffer who died just days ago.
28. The Commonwealth has stated rules to protect prisoners like taking the temperature of people who come into the prison, but when a person is asymptomatic, he or she doesn’t have a temperature. It is a futile exercise to screen persons who may have a normal temperature, but be a carrier, and still be admitted.
29. The nationwide cry in every context — work, nursing homes, anywhere — is to make available tests, the ones that work.
30. Of course, an inmate, if tested, might be fine one day but not the next; the same with staff and contractors, and the surfaces that retain the virus for days afterwards.
31. The Commonwealth can’t pretend it doesn’t know the risk that it’s forcing upon inmates including Aman.
32. We cannot suffer the bromides that all will be okay when we have a series of lessons how it has not been okay in the past.
33. In the prisons and jails, we are dealing with the special case, the worst case, where persons really can’t protect themselves by distancing themselves, one from another, because they are in close quarters. We’ve seen what happens in nursing homes, retirement communities, cruise ships, even on a military ship, and of course, now we have, the case at hand, prisons and jails.
34. We have had the lulling assurances since January from persons who knew better when they gave those assurances, and gave the virus leave, to grow, to take hold, and the numbers of infections and deaths climbed; and all the belated efforts, apologies, and catching up, came too late for those who were infected, got deathly ill and died.
35. We know too much to allow that to happen in Virginia now.
36. Aman has pre-existing conditions identified as dangerous should he be infected — he has asthma and high blood pressure, conditions affecting the lungs and the heart.
37. It’s been said that the standard of civilization is how we treat our own. Prisons and jails have not done well in the histories and studies that have proliferated over the centuries. And I’m not saying there haven’t been efforts to rebut the worst practices. But they’ve hardly been effective. Nathaniel Hawthorne once described prison as “the black flower of civilized society.” His metaphor begs the question out of what soil does such a flower emerge. For our purposes that soil might be call “deliberate indifference” to the safety of inmates and staff.
38. THE CONSTITUTIONAL PRECEDENT — “DELIBERATE INDIFFERENCE.” The gravamen of our charge is that the prisons and jail and their practice of leaving inmates to fend for themselves including Aman is unconstitutional arising out of a line of Supreme Court cases that defined this constitutional right.
39. The U.S. Supreme Court ruling in Estelle v. Gamble, 429 U.S. 97 (1976), held that to ignore a prisoner’s serious medical needs can amount to cruel and unusual punishment, because “[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical torture or a lingering death[.] … In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common law view that ‘it is but just that the public be required to care for the prisoner, who cannot by reason of deprivation of his liberty, care for himself.’”
40. The Estelle court concluded that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain.’” (underlining supplied) Id.
41. This 8th amendment is made applicable to the Virginia by the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660 (1962).
42. This 8th amendment was once, some time ago, about torture and barbarous methods. But in more modern times, it has been defined to be about more than physically barbarous punishments. See, eg, Gregg v. Georgia, 429 US 153, 171 (1976)
43. The 8th amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity and decency” against which we must evaluate penal measures. Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968).
44. The Supreme Court has found repugnant to the 8th amendment those punishments which are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 US 86, 100–101 (1958).
45. It is true that the Constitution “does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981).
46. In Farmer v. Brennan, 511 U.S. 825 (1994), the Court stated, however, that the 8th amendment “imposes duties on these officials who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.’”
47. Estelle set the bar, that “deliberate indifference describes a state of mind more blameworthy than negligence.”
48. The actors know the risk they are making for the inmate, and proceed anyhow.
49. DEERFIELD — WHERE AMAN IS INCARCERATED. At Deerfield, where Aman is lodged, it is low security and one staffer has been infected. On information and belief, two inmates were also infected but are not found on the prison stats. Ex. 2, p. 4.
50. Deerfield is a level 2 facility in Capron, Virginia, and houses about 1,080 male inmates. See Ex 1, p.2.
51. THE VIRUS. It arrived in the final days of December 2019, a new virus, a variant of earlier scourges, with pneumonia-like symptoms, originating in Wuhan, China, and it spread like wildfire, progressing geometrically from one person to the next especially in densely packed communities.
52. It’s a virus that originates in animals, and jumps species to us humans like the SARS outbreak in 2002 and the MERS outbreak in 2012. The official name of the virus is COVID-19.
53. The virus gets to any one of us from another by droplets that are transmitted by coughing or sneezing. This is most easily accomplished when people are in a small community in close quarters, interacting with one another. The droplets enter your nose, eyes or mouth. They take root in the back of your nasal passages and in the mucous membranes. You may have seen images of the spiked proteins that hook onto your cells and then, this is the bad part, find their way into the cell. The virus takes over the cell, and breaks out of that cell and into other adjoining cells. It starts in the back of the throat, crawls down the bronchial tubes, inflames and damages our lung sacks. The authority describing how this works is Dr. William Schaffner, an infectious disease specialist at Vanderbilt University Center.
54. If the lungs fill with liquid, there is a range of unfavorable outcomes from painful to death. If the virus takes over and damages the sacs that hold our air and the oxygen we need, we may not get the oxygen in our blood, or dispose of the carbon dioxide we normally “exhale.” CT scans can reveal ground glass opacities but not early on in the disease.
55. We are in a world-wide pandemic — declared by the World Health Organization — originating in China, and spread to South Korea, Italy, Iran and the United States.
56. The New York Times last month published a report that revealed the CDC had run scenarios of the spread of the virus that found, in the worst case scenario, anywhere from 160 million to 214 million people could be infected. Hundreds of thousands even more than a million could die.
57. The trick has always been what we do to reduce the risk that makes the worst case scenario a reality. According to the Times, Lauren Gardner, an associate professor at Johns Hopkins Whiting School of Engineering, said, “When people change their behavior … those model parameters are no longer applicable …there’s a lot of room for improvement if we act appropriately.”
58. Rough statistics, we are told, of those who may get the virus, from various sources, indicate 80% of those infected will have mild symptoms. 20% are going to be worse. That’s 1 out of 5 persons. And 2–3% of that 20% may be fatal depending on age, and pre-existing health conditions.
59. The virus delayed the Louisiana democratic primary, because we don’t want crowds increasing the chances of spreading the virus. We have closed out the Boston marathon, as well as schools, colleges, sporting events, senior centers, the St. Patty’s Day parade in Boston last month, Disneyland and Disneyworld, and you can be sure there’s more to come, whatever meeting you were going to attend today or this week.
60. Our best defense appears to be isolation, don’t touch others, don’t sneeze or cough, keep your distance, think 6 feet, wipe everything down with alcohol, drink a lot of water, stay away from those who are ill, don’t travel if you don’t have to travel, stay away from crowds, from public gatherings.
61. JARRING CONTRAST. Is any of this possible in a prison or jail? It is if we fool ourselves.
62. WHAT THE PETITIONER SEES AT DEERFIELD. Aman Lail forwarded this statement in support of his petition:
a. I have been incarcerated for six years and 4 months, have complied with all the policies of local and state facilities, and have remained charge free and always kept the job assigned.
b. While I’ve been in custody, I have worked as an inmate advisor in order to help other inmates to stay out of trouble.
c. I’ve also worked with the Environmental Services Unit ESU which required me to obtain a statewide gate pass.
d. I have also completed the OSHA 10 certification, OSHA 30 certification and safe serve certification.
e. Tension at this Deerfield facility is at an all-time high. The current situation has prompted me to write this request for a conditional pardon.
f. There are contractors that have continued to come into the facility daily.
g. Inmates are being forced to work at other facilities that currently have cases of Covid 19 and then return here.
h. Officers that are sick and coughing are still coming to work and some may even be asymptomatic and knowingly spreading COVID-19.
i. I’m housed in a cell with another inmate which has poor ventilation and no air-conditioning and was originally designed for single occupancy.
j. DOC has provided me with a sneeze guard which is not considered proper PPE and this concerns me greatly.
k. As a child I was diagnosed with asthma and I have high blood pressure which is considered a heart condition.
l. An inmate here said, “if I get it, COVID-19, I’m going to run around and cough on everyone. Comments such as that cause a lot of concern for our safety.
m. I am greatly worried because DOC does not have enough PPE, medical staff, and ventilators to support everyone when the inevitable outbreak occurs. I’m not being pessimistic. It’s happened all across the country, and now it’s beginning here. It will get much worse before it gets better.
n. Under the current statute, I understand that a conditional pardon is possible, so I may be safe, that I may be put under house arrest, and my sentence may be reduced perhaps to the maximum of the sentencing guidelines.
o. I have a legit home plan in place. One that time, my age, and circumstances has informed my behavior to conform with good behavior. My mother’s name is Gurdeep Lail and my father’s name is Gurcharan Lail; they are located at 17768 Braemar Pl., Leesburg, VA 20175. Their home number is 703–669–2849 and they can verify that I may stay there and that they want e there.
63. THE UNDERLYING CHARGES. Aman was a broken man when he realized that the accident on January 24, 2014 resulted in the death of the other driver. Ex. 9, pp 34–35. That’s why the charge is of “involuntary” manslaughter. His conduct was involuntary. He did not intend it. Aman had been drunk and it was a terrible condition he suffered at the time, an illness he couldn’t shake. Not then. But he realized he had to make amends some way for the terrible act he’d committed, what he had done despite his illness. He felt he was being told something he should have understood long before when his good friend in a similar accident died himself within a block of this accident. Ex 10, pp. 36–37. His epiphany, if you will, came too late to Aman to save that other driver. He had been speeding, It was reckless, and someone died because of it. It was 2AM and Rosslyn, Virginia, where the incident happened, appeared empty at that hour but it wasn’t. There was one other car. And that wouldn’t have justified such driving. But it happened. And he had to pay for what he’d done wrong.
64. There were issues in the case. One eye witness insisted that Aman ran through three lights when it wasn’t true. Fatema Rafiqi testified she had a clear view of all three lights, admitted the officer corrected her, that there weren’t 3 lights, she guessed she was wrong, and then she wasn’t 100 percent sure. Ex. 11, at pp. 39–44.
65. But Aman had run through red lights. That’s how he saw it.
66. The officer who interviewed him, when he had injured himself, and after he’d been up all night, didn’t arrange for him to have counsel when she questioned him for 3 hours.
67. He asked how he could get counsel and she blew off his efforts to be represented while she interrogated him.
68. Detective Sara Bertolini was assigned to investigate the incident. She’d been a detective about half a year. Aman asked her how the other driver was. She knew then he was deceased but didn’t tell him. She told Aman she hadn’t been to the hospital to know, but she did know and kept that from Aman. She read Aman his right to have a lawyer present before questioning. When Aman asked if he could have a lawyer, she didn’t offer him a phone to get one, didn’t take him before a magistrate to have one assigned, But she admitted Aman had a right to an attorney right then, even a court appointed attorney. Plainly she didn’t want him to have an attorney because it would have ended the interview. In the interview that went on for 3 hours, Aman admitted what he’d done — because that is who Aman is. Ex. 11, pp. 45–53.
69. The speed he traveled and his blood alcohol levels were exaggerated even when he had pleaded guilty.
70. In a way, the guidelines calculation worked in the sense that this was a dispassionate look at this terrible case in which an innocent man died. Ex. 16, pp. 60–64.
71. I didn’t handle this case and asked what could account for this sentence and some said possibly it was his record.
72. But the guidelines take into account not just the offenses before the court but also the circumstances of the offense, and prior offenses and convictions including prior traffic offenses. Id.
73. The range under the guidelines was from 3 years 3 months to 7 years 10 months, and the midpoint was 6 years. Aman has now passed the range midpoint by 4 months
74. At Aman’s sentencing, the court was packed with family, friends, all attesting to the fact that this was a young man worthy of a sentence within the guidelines, and perhaps not the maximum end.
75. Circuit Judge Louise M. DiMatteo joined the court two years before this sentencing. Ex. 7, p. 29. She had had one controversial case before in which a mother, Zoraida Magali Conde Hernandez, left her infant son, 8 months old, in a car for 7 hours; the child died; the mother was sentenced to probation.
76. Aman was sentenced to 12 years by Judge DiMatteo, 4 years more than the maximum under the guidelines.
RELIEF REQUESTED
WHEREFORE, based on the petition of Aman Lail, by his counsel, John P. Flannery, II, we request a conditional pardon based on our state’s failure to assure health and safety to Aman, and we further ask that this court modify the sentence to require no more than the maximum sentence under the sentencing guidelines, 7 years and 8 months, and permit Aman to serve the balance of his sentence at home constrained by a GPS ankle collar, and such other relief as is deemed fair and just.
RESPECTFULLY SUBMITTED,
Aman Singh Lail
BY COUNSEL:
John P Flannery, II, Esq.
CAMPBELL FLANNERY
202–365–5060; jonflan@aol.com
NOTE: I hope you found this of interest. JPF
