Across America, some prosecutors—arguably with the authority of state and federal laws—are jailing innocent crime victims and witnesses, in hopes of insuring their testimony in court. In Washington State, a sexual-assault victim was arrested and jailed to secure her testimony against the alleged perpetrator. (He was found guilty of kidnapping, attempted rape, and assault with sexual motivation.) In Hillsboro, Oregon, a Mexican immigrant was jailed for more than two years—nine hundred and five days—to obtain his testimony in a murder case. (The case was being brought against his son.) And in Harris County, Texas, a rape survivor suffered a mental breakdown in court while testifying against her assailant. Afraid that the woman would disappear before finishing her testimony, the court jailed her for a month. She has since filed a federal lawsuit against the county and several individuals involved, alleging that she was “abused, neglected, and mentally tortured” while in detention.
The right to jail these so-called material witnesses has deep roots in America. (A material witness is an individual considered vital to a case, often because he or she saw a crime unfold or was its victim.) As early as 1789, the Judiciary Act codified the duty of witnesses to appear before the court and testify. From a public-safety perspective, the statute has a clear purpose: the perpetrator of a crime should not escape punishment because of a witness’s reluctance to testify. “The duty to disclose knowledge of crime rests upon all citizens,” a 1953 U.S. Supreme Court opinion, in the case Stein v. New York, reads. “It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.” In 1984, Congress reaffirmed the right to jail material witnesses, but also noted that their testimony should be secured by deposition, rather than imprisonment, “whenever possible.” Jailing crime survivors and innocent witnesses, in other words, was legal but undesirable.
After the attacks of September 11th, Attorney General John Ashcroft identified the material-witness statute as a convenient weapon for the war on terror. Federal agents could use it to detain individuals of interest, even without sufficient evidence to arrest them as criminal defendants, by deeming them “witnesses” to terrorism-related crimes. In late 2001, the Department of Justice used material-witness laws to target Muslims, often arresting them at gunpoint and later placing some in solitary confinement. According to Human Rights Watch, the U.S. government eventually apologized to at least thirteen people for wrongful detention as material witnesses, and released dozens more without charges. “Holding as ‘witnesses’ people who are in fact suspects sets a disturbing precedent for future use of this extraordinary government power to deprive citizens and others of their liberty,” Human Rights Watch argued. In the face of lawsuits and public scrutiny, the practice slowed.
Recently, however, controversy over the use of material witness statutes has resurfaced—this time at the state and local level. In parts of the country, prosecutors are using these orders to put crime victims—especially poor victims, and, in cities like New Orleans, victims of color—in jail in order to get swift victories in court, sometimes, puzzlingly, in minor cases. A lawsuit filed today in federal court by the American Civil Liberties Union and Civil Rights Corps, a legal nonprofit based in Washington, D.C., seeks to challenge what it calls “the Orleans Parish District Attorney Office’s unconstitutional policy of using extrajudicial and unlawful means to coerce, arrest, and imprison crime victims and witnesses.” The suit alleges that the office’s practices “ensure these victims and witnesses are trapped in jail.”
Despite the public attention given to prosecutorial misconduct in recent years, this form of alleged abuse has gone mostly unnoticed. Last spring, a watchdog group called Court Watch NOLA released a report documenting attempts by the office of the Orleans Parish D.A., Leon Cannizzaro, Jr., to coerce testimony from crime survivors. The lawsuit filed today, on behalf of Singleton and other plaintiffs, questions the justifications that prosecutors have used to put victims and innocent witnesses in jail. According to the complaint, prosecutors sought more than a hundred and fifty material-witness warrants over the past five years in Orleans Parish; approximately ninety per cent of the victims and witnesses, in cases where the A.C.L.U. could determine race, were people of color. Poverty, homelessness, precarious immigration status, and mental-health issues were all invoked by the D.A.’s office as reasons to jail crime victims, who included survivors of sexual assault, domestic violence, and child sex trafficking.
“We believe we’ve only scratched the surface of this trend,” Katie Chamblee-Ryan, an attorney for Civil Rights Corps, told me. “The pattern of behavior is so brazen, but it wouldn’t naturally come to light without dogged investigation”—in part, she alleged, because prosecutors often don’t file the relevant documents. (Both the A.C.L.U. and Civil Rights Corps are launching national initiatives to seek prosecutorial accountability.)
Starting last spring, I began reviewing the cases of more than a dozen material witnesses who had been detained in New Orleans. Near the city’s Garden District, I sat down with a sixty-year-old homeless man who was arrested largely because he didn’t want to have a private meeting with prosecutors about his assault; he was jailed for eight days, on a hundred-thousand-dollar bond. More recently, I reviewed the case of an alleged incest victim, “M.C.,” whom prosecutors sought to jail because they feared she might not show up in court. Their reasons included the claim that, “as the victim of this heinous crime” involving sexual abuse by her father, the victim “has routinely changed residences, and does not have a stable address.”
“This isn’t something we celebrate doing—it’s a last resort,” Christopher Bowman, an assistant district attorney and spokesperson for Cannizzaro’s office, told me. “But the people who want to criticize us for doing it don’t have a solution for how not to do it, unless it’s to just dismiss the case, which we are not willing to do.” Public safety, Bowman argued, demands that these cases be prosecuted successfully. And the fear of snitching in New Orleans runs deep; the D.A.’s office, he said, needs tools to combat this fear, and budget cuts have left prosecutors with few options. The threat of jail time, Bowman concluded, had proven effective—but crime survivors in the city told me otherwise.