Instead, Soaress office prosecuted Ben as an adult, and insisted that Ben plead guilty as an adult, to third-degree arson, a felony punishable by up to 15 years in adult prison.
Besides refusing to treat Ben as a youthful offender, Cheryl Fowler, the assistant district attorney prosecuting the case against Ben, refused to even consider evidence that Ben was mentally ill. Bens family said they retained Bob Corliss, a
Forensic Mental Health Advocate, whose job it was to explain Bens case to prosecutors, but Fowler wouldnt even talk to Corliss.
Neither Soares nor Fowler responded to requests for comment.
Bens father said the attorney they retained to represent Ben, Andrew Safranko, negotiated a plea agreement with prosecutors and the court behind closed doors.
Everything was pretty much signed, sealed and delivered, Douglas said.
I dont think we had any choice in the matter. And I told our high-powered attorney, for 500 bucks an hour, after it was all over, I said, Really? I dont think the outcome could have been any worse.
Safranko, though his name appears as Bens sole attorney in court records, told The Daily Beast that he was not the lead attorney on the case. He also said Bens family was involved in all decision-making.
According to Douglas, Corliss (the mental-health advocate they retained) told them that even if a jury believed that Bens mental illness excused him from criminal liability at a trial, he still faced at least 5 to 10 years confinement in a state mental hospital.
The idea of releasing somebody into the public is such a liability, Douglas said, relating what they were told by Corliss, that theres a very small chanceeven if Ben were miraculously cured they would still keep him there for a long time just because they didnt want to sign off on the responsibility of releasing somebody like that into the public domain.
So, Bens father said, it looked like a plea bargain prison sentence would be the best thing.
took the deal and pleaded guilty. The Honorable Thomas A. Breslin of Albany County Court accepted Bens plea. He sentenced Ben as an adult to 4 to 12 years in state prison, and tacked on $455,000 in restitution. Ben was 17 years old.
Judge Breslin did not respond to a request for comment, but his brother, State Sen. Neil Breslin, told the
Gotham Gazette news website he thought his brother went too far.
We have this shy, bright teen with so much potential who admitted mental health issues and admitted he started a fire. Does that mean he should be sentenced to jail with older hardened criminals who harassed and abused him? The answer to me is clearly no.
Ben, his mother said was totally unprepared for prison.
He had trouble recognizing peoples social cues. If someone was nice to him he thought it was because they wanted to be his friend. He didnt realize they were trying to take advantage of him. He had no life experience. He was not a street-wise kid
And the DA knew all of this when they sentenced him, but they dont care, Alicia said.
A psychiatric evaluation that found Ben could not properly interpret social cues and would be vulnerable to predation in prison was included in a pre-sentence report reviewed by Judge Breslin and assistant D.A. Fowler, court records show.
After being sentenced, Ben was taken to the Albany County Jail and placed in its mental health unit. Yet he was denied his psychiatric medication, according to prison records made later. After a week, Ben was transferred to the Downstate Correctional Facility, where convicts are first received into state custody, and had his medication restarted. From there he was sent on to the Woodbourne Correctional Facility, where he stayed from March 2011 until May 2013.
The first year Ben was at Woodbourne, he was stable and sane enough to earn a high school equivalency diploma and attend
courses offered in prison through Bard College.
During this time a corrections officer who supervised Ben came to know and like him. The officer is not authorized to speak about prison matters, and so requested that his name not be disclosed, but prison records confirm that he interacted with Ben regularly.
Ben, he said, was very nice. Very well-behaved, [a] little dirty. You know he didnt keep his cell clean. I had to yell at him a few times.
Above all, the officer said, Ben was scared out of his mind. He really was.
When I heard he killed himself it was like My Godthat was something he was thinking about. I was disturbed, I was very disturbed over Benjamin dying. I really was.
In early 2013 Ben was transferred within the prison, from a cellblock to open, dormitory-style housing. Thats when Ben was raped by an older inmate, Donald J. Robinson, according to prison records. At the time, Robinson, 45, was serving a 20-year sentence for first degree burglary and first degree robbery, which he is still serving, now at the notorious Attica Correctional Facility.
Bens mother said Robinson pretended to be his friend, and pretty much groomed him to take advantage of him sexually, later.
Robinson started asking Ben for sex, then he demanded it before finally threatening him: If he didnt comply, other prisoners were going to extort him, beat him up, or worse. Ben felt he didnt have choice, Alicia said, and couldnt tell anyone about it, so he submitted.
It went on for several months, Alicia said.
Ben wanted it to stop, his mother said, but he was afraid of what would happen if he went to prison officials for help and get labeled a snitch. Instead, Ben tried to get caught. In May 2013, Ben was busted performing oral sex on Robinson, according to prison records.
Prison officials punished both Robinson and Ben, and the mentally ill teenager was sentenced to 70 days in solitary confinement.
Ben wrote a letter home that, Alicia said, tore my heart stating that he was extremely depressed, and he knew he would be insane by day 70. He begged us to do everything possible to get him out of solitary.
Bens family hired an attorney, Cheryl L. Kates-Benman, who specializes in prison issues. Citing the Prison Rape Elimination Act of 2003, Kates-Benman convinced prison officials to release Ben from solitary confinement after two weeks.
Instead of releasing Ben into general population at Woodbourne, prison officials sent Ben to the Mid-State Correctional Facility. At Mid-State, Ben was placed in a specialized housing unit known as the Intermediate Care Program, commonly called ICP. The ICP is for prisoners with significant mental health issues that fall short of requiring full hospitalization, but do require special treatment and isolation from ordinary prisoners in general population.
At Mid-State, Ben manifested symptoms commonly associated with Post-Traumatic Stress Disorder, and mental health professionals concluded that Ben has likely experienced a disturbing traumatic event in the past.
Nevertheless, prison officials and clinicians soon discharged Ben from the ICP, and sent him to live, again, in another dormitory, in general population.
This time, the Bloods took interest in Ben.
They recognized that he was a young, innocent kid, probably a little more affluent than other people in there, so they started extorting him, and then they started having him transport some K2 out to the yard, Alicia said.
One night, prison guards caught Ben with K2, a synthetic cannabinoid. Instead of placing Ben in solitary confinement, prison officials transferred him from Mid-State to Fishkill.
Fishkill sits on an open, rolling hillside between Beacon Mountain and the Hudson River, 60 miles north of New York City. It is a semi-bucolic setting of farms and former farms being eaten away by suburban sprawl. The prison began life in the 1892 as the Matteawan State Hospital for the Criminally Insane. In 1977, New York closed Matteawan and converted it into the Fishkill Correctional Facility, a medium-security prison for men.
The closing of Matteawan and its re-purposing as a prison signaled the
criminalization of mental illnessa wholesale shift away from considering mental illness a medical condition amenable to treatment, toward the punishment of persons who are afflicted.
Today, Fishkill holds more than 1,500 male criminal offenders, housed in open, dormitory-style housing typical of contemporary medium- and minimum-security prisons, as well as a 200-bed maximum-security disciplinary segregation unit known as S-Block, a six-cell self-harm crisis unit with observation cells, and 42 residential mental-health treatment beds, spread across three small, specialized housing units.
Services for mentally ill prisoners are administered by the New York State Office of Mental Health (OMH). Fishkill is a designated OMH Level-1 facility (
PDF), providingat least on paperthe highest level of mental health care available within the state prison system.
But in April 2012, auditors from the Correctional Association of New York, a watchdog agency with a legislative mandate guaranteeing unrestricted access to prisons, visited Fishkill and were disturbed by what they found.
At the time, 464 prisoners were on the psychiatric care caseload but there were only 42 mental-health care beds to treat them. There are some concerns, the associations report stated, that the vast majority of people at Fishkill with mental health needs are in general population and thus receive limited mental health support other than medication.
OMH staff refused to speak with members of the association.
The report concluded that between 2011 and August 2013, there were 12 attempted suicides by OMH patients at Fishkill (six in 2011, two in 2012, and three in 2013), with one person committing suicide in 2013.
In 2014, another number was added to the list.
At first, Alicia said Ben was OK at Fishkill.
Maybe on the outside he was, but not on the inside.
By July 2014, four years into his sentence, Ben began to recall his crime and associate the fire with love and romanticism, according to mental-health treatment records. Then, during a group counseling session in August, Ben said each day he feels more empty or less emotional.
This was before Ben repeatedly witnessed guards abuse prisoner-patients in the Fishkill ICPwhere theyre supposed to receive dedicated psychiatric treatment and be protected from predators.
Usually the other patients are completely out of it, Alicia said. Some of them are very schizophrenic. They are very psychotic. Ben was functional when hes on his medication, and so he was aware of what other people were doing.
Ben told his parents that he saw guards call inmates crude names and slap them to get their attention.
A prisoner-patient whom Ben had first met at Mid-State was transferred into the Fishkill ICP with Ben. After Ben left Mid-State, the man had gouged one of his own eyes out. He wore a patch over the empty eye socket and Ben told his family, the COs were pushing this guy in line. And calling him a Pirate.
Ben sent a letter to Cheryl Kates-Benman, the lawyer who got him out of solitary at Woodbourne, describing his new home.
It makes me feel very unsafe in this environment and that Im in and I hope you could give me some advice on how to stop this from happening to me.
According to prison records, three weeks later, on Sept. 18, a state psychiatrist, Dr. Masum Ahmad, canceled Bens Abilifythe medication that had been given to Ben to treat his schizophrenia and suicidal depression.
Then Ben witnessed Fishkills beat-up squad in action.
Every prison maintains a group of 12 or so guards whose official job is to maintain order by breaking-up fights between prisoners, quelling disturbances or responding to assaults on staff. Because COs work in shifts, each shift or tour has its own squad. Members of the squad rotate, but tend to be among the physically largest COs working in the facility, or the most aggressive.
Ben told his family that he witnessed the beat-up squad torture a psychotic prisoner-patient in the Fishkill ICP, after the man randomly punched a corrections officer delivering mail, for walking too closely past him in the day room.
Douglas, Bens father, remembers what Ben told him like this. When he struck the CO thats when the shit hit the fan. The COwhatever he did to make a call or whatever. And there was a whole bunch of COs who came in. And they started beating the crap out of this guy.
And what really disturbed Ben most was, they were just standing off to the side in the same room, where they were holding this guy down, and one of the COs was jumping down, up-and-down, intentionally breaking this guys knees.
And of course that fella, hes was just a mentally ill guy, he didnt mean anything by it, Ben knew that, and he was screaming bloody murder.
And one of the COs, because everybody there was quite disturbed, they took all the ICP people and locked them in another room. And Ben had said it was just excruciating to hear this guy suffering, and screaming, through the door like that.
Alicia remembered the rest of what Ben told them.
Then a few minutes later they saw him being wheeled out in a wheelchair.
He said the guy disappeared after that and he had no idea what happened to him. Everyone acted liked nothing happened.
But he realized, Alicia said, referring to Ben, at that point the brutality that these guys were capable ofthey could kill you if they wanted to.
After witnessing the violence at close range, and being denied anti-psychotic medication, Ben started coming apart. He stopped calling home, started sleeping more, lost 20 pounds, and became unkempt and fidgety, according to Alicia.
Alicia called Fishkill and spoke with Bens primary mental health provider in prison, psychologist Brooke Merino. Alicia told Merino that Ben had not called in several days, and that this is not a good thing when he stops communication.
Merino documented the phone call, and Alicias warning, in Bens treatment record.
But, instead of listening to Bens mother, Merino notes that his diagnosis as severely depressive with psychotic features will soon be changed. Merino and other Fishkill doctors re-diagnosed Ben as having Anti-Social Personality Disorder, with narcissistic tendencies.
On Oct. 20, Ben allegedly got into a fight with another prisoner in the prison yard and was sent to solitary confinement. Ben told Merino that it had not been a fight, according to treatment records, but that a guard attacked him after asking if Ben was taught to read in the ICP.
To cover up the assault, Ben said, the COs then accused him of fighting with the patient-prisoner he had been sitting with.
Ben told Merino that hes fearful because he was told that if he tells anyone he will be killed, according to treatment notes Merino took of the meeting. Ben said he would rather kill himself than be beaten to death.
Notwithstanding Bens fear of being killed by guards, Merino reported Bens allegations of abuse to prison officials. Prison officials conducted an investigation and questioned Ben.
Sergeant Terry Shultis was tasked with sounding out Bens account of abuse. Ben repeated what he told Merino to Shultis, records show, but Shultis discounted the allegations. Shultis said Ben was a troublemaker and a liar, and called him a punk ass bitch, Alicia said Ben told her.
If Ben didnt keep his mouth shut that he was going to tell everyone that he was snitch, she added.
It was clear that they were beginning to target him because he was aware enough about his surroundings that he was trying raise a voice about these things that were wrong, Bens father said.
The day after the fight, a mental-health treatment team led by doctors Merino and Ahmad recorded that Ben reported being depressed and threatened by guards.
Thats why Id rather kill myself before someone else does it, Ben told them.
The treatment team had prison officials transfer Ben into an observation cell in the crisis unit. Ben again told clinicians he feared for his life if he were sent back to the special housing unit. Instead, he asked to be transferred to another prison. Ben threatened to refuse his medication and to bash his head against the concrete walls of his cell.
Despite his threats of self-harm, including suicide, Merino reported that Mr. Van Zandt continues to present
without salient symptoms related to Major Depression with Psychotic Features [emphasis added].
However, in apparent contradiction, Ben was re-started on Abilifythe medication he had been taking for schizophrenia and psychotic depression since 2011.
On Oct. 27, Douglas, Bens father, called Fishkill expressing concern for Ben and spoke with Merino.
She said he was doing great, Douglas said, remembering their conversation. That was a couple of days before he died.
Four days later, on Oct. 28, Ben was found guilty of fighting and sentenced to 30 days in the special housing unit, where he would be exposed to corrections officers again.
That night, Ben made good on his promise, with shoelaces and a sheet.
A prison official called Bens parents two hours after he was pronounced dead.
And he had absolutely no details, Alicia said.
How did he die? Was he murdered? He would give us no information.
Alicia said they tried calling Fishkills superintendent and the Department of Corrections and Community Supervision but no one would talk to us. No one would talk with us. Everyone just gave us the run-around.
Alicia wanted to see her sons body, but the one prison official she did manage to talk with told her that she couldntthey still considered him to be their property.
And they said, No, you cannot see him until after they do the autopsy because hes the property of DOCCS until that time.
Ben left behind a handwritten suicide note.
DOCCS did not tell Alicia or Douglas about their sons suicide note.
It wasnt until months later that they found out it even existed, and then it took more time for State Sen. Neil Breslin, Judge Breslins brother, to convince the State Police to give him a copy, which he provided to Alicia.
PLEASE TELL MY FAMILY I LOVE THEM, the suicide note said.
DOCCS did not respond to a request for comment.
OMH declined to comment about its particular treatment of Ben, but said that its services at Fishkill provide the most comprehensive mental health services available to New York State prisoners.
One week after they buried their son, Alicia Barraza and Douglas van Zandt went to the New York State legislature.
We were still in shock, Alicia said, when asked about the visit. But we were also angry about Bens death, which could have been prevented, and with the disgraceful way DOCCS treated us after he died.
Alicia testified in front of a joint committee on prisons and mental health and told
her sons story in support of legislation that might have saved her sons life, by raising the age that juvenile law-breakers could be prosecuted as criminals, from 16 to 18.
Despite Alicias heart-breaking personal testimony, and support from Gov. Andrew Cuomo, the measure was defeated, as it has been every year since.
I think its disgraceful, Alicia said, that the legislature hasnt passed this bill and that New York State may be the last state in the country to do so. Their reasons for opposing the bill just dont hold up to the facts but they keep spouting this nonsense. They are succumbing to political pressure from the statewide District Attorneys association and the COs union.
Meanwhile, despite multiple state and federal investigations into the killing of Samuel Harrell by Fishkills beat-up squad, no prison official has been charged in connection with his death.
Based on what happened to Ben, this doesnt surprise Alicia.
I fear there will be more deaths until someone intervenes, like the United States Attorney, Preet Bharara. Why he hasnt I dont know.