In another blow for Brittany Martin and her family, South Carolina Court of Appeal judges disagreed that her 4-year prison sentence for yelling at police officers during a protest was excessive and upheld her conviction.
And, in May, Martin was denied an early release by a state parole board. She won’t have another hearing until next year.
It’s been over two years since the mother of five has been separated from her family, and their devastation has been intensified by Martin’s claims that she’s being mistreated in the Illinois facility where she’s incarcerated.
“I think this [the appeal being denied] is all B.S.; it’s a crock,” a frustrated Eric Kennedy, Martin’s husband, told Capital B.
Legal advocates also warn that Martin is being made an example of, and her conviction sends a message to others about not protesting in South Carolina.
“The court sidestepped the serious First Amendment issues we raised on appeal, finding that those arguments had not been preserved by trial counsel,” according to a statement provided by the South Carolina chapter of the American Civil Liberties Union, which represented Martin in her appeal.
The statement went on to say, “then, in a single paragraph, the court concluded that Ms. Martin’s absurdly long four-year sentence — perhaps the harshest ever under the state’s breach of the peace law — was not disproportionately harsh under the Eighth Amendment.”
Martin and her family, like millions of others around the world, left their homes during a pandemic to protest the police murder of George Floyd in May 2020.
Kennedy, who was also arrested while protesting at the same event, but had his charges dismissed, has questioned the legality of his wife’s charges from the beginning. Martin, 36, was convicted of breach of peace of a high and aggravated nature (BOPHAN), not of disturbing the peace or inciting a riot like a convicted Jan. 6 insurrectionist.
“Just make it make sense,” Kennedy asked rhetorically.
Meredith McPhail, an attorney with the ACLU-SC who handled Martin’s appeal, says the higher court’s decision is “unjust and unconstitutional.” The court agreeing with Martin’s conviction and sentence is a glaring affirmation that she is a state-sanctioned scapegoat to deter future protesters, Kennedy and legal advocates have previously told Capital B.
“Brittany went out with millions of other Americans to protest the murder of George Floyd in the summer of 2020, she didn’t hurt anybody, and she didn’t damage anything, and yet she’s serving four years,” McPhail said. “I think reasonable South Carolinians could be chilled, and be fearful, more fearful, to go protest based on what’s happened in this case.”
Martin’s case wasn’t the first BOPHAN conviction in South Carolina’s criminal justice history, but it certainly is the only one McPhail and her legal team could find in that court’s jurisdiction that carried a 4-year sentence.
“The prevailing practice in South Carolina’s Third Circuit is to sentence individuals convicted of BOPHAN to time served, a short sentence accompanied by a fine, or a suspended sentence,” according to brief’s filed in April 2023 by McPhail.
In fact, there was a case in Columbia from 2010 where 20-year-old Martin Gasque died. On appeal, Curtis Simms, the man acquitted of causing Gaque’s death, but convicted of BOPHAN, had his sentence reduced from five to three years in prison, plus three years’ of probation, according to court documents.
“We do plan to continue fighting for justice in Brittany’s case,” McPhail said.
The ACLU-SC will have to ask the same court that disagreed with their appeal for a rehearing. The appellate judges issued their written opinion in July without a hearing. If the judges decline to rehear the case, then McPhail’s team can ask the state’s Supreme Court to weigh in. The highest court in the state can also decline their request to be heard.
‘I’m getting fed up’
The last time Kennedy touched his wife was two weeks before Christmas last year. It’s still hard to believe for Kennedy that someone can be imprisoned for their words and how they say them.
Martin was arrested on charges of instigating a riot and five counts of threatening the lives of police officers. Police said Martin “became upset” with an officer after he said, “What you do from that point will dictate what we do,” according to an incident report and the police body camera footage.
Martin responded, “You can’t tell us how to fucking protest.”
“Go call all our hitters now, you tell them get ready, everybody is strapped, everybody. Y’all better be ready, those vests ain’t gonna save you. Some of us gonna be hurt, but some of y’all going to be hurt. We are ready to die for this, we are tired of it. You better be ready to die for the blue; I am ready to die for the Black. I am dying for the Black. You better be ready to die for the blue.”
After her sentencing, Martin was transferred in March 2023 nearly 900 miles away from Sumter to Logan Correctional Center in Lincoln, Illinois. Kennedy packed up the family and moved there, too.
“There is no way for a parent, or more importantly, a mother, to raise their children while incarcerated effectively,” Ari Goode, communications director for the National Council for Incarcerated and Formerly Incarcerated Women and Girls (The National Council) said in a statement. “It underscores the urgent and immediate need to dismantle systems that prioritize harsh punishment over the well-being of families and communities and to seek alternatives to incarceration for primary caregivers, whose absence can have devastating long-term effects on their children’s lives.”
Despite a closer commute to the prison Martin is in, receiving phone calls or letters in the mail from her has been extremely infrequent, and scheduling an in-person visit or video call has been impossible, he says.
The prison’s visitation coordinator would “either call or email me that I won’t be able to see her because she’s restricted,” Kennedy, 38, said.
Kennedy’s understanding of Martin being “restricted” is that she’s either in solitary confinement or has had her privileges taken away as a form of retaliation because of the appeal process, and her allegations of sexual assault against a jail guard.
“They’re telling her that she won’t see me until November,” he said.
“This is the fundamental problem, we think, with incarceration,” said Jennifer Vollen-Katz, executive director with the John Howard Association, a century-old independent incarceration oversight organization based in Chicago.
“You have this completely vulnerable population that is at the mercy of those people who work inside — the power structure is so clear, and so complete — the city of prisons is arguably the most closed system we have of any government-run system in this country,” Vollen-Katz said.
Capital B has reached out to the Illinois State Police, the agency that investigates the prison, for comment. The state police says they don’t have any complaints of abuse or neglect filed by Martin against prison staff, and suggested reaching out to the Illinois Department of Corrections. Capital B reached out to that agency for comment, and they also don’t have any complaints filed by Martin.
Allegations of a sexual assault Martin filed against an incarcerated person in April was “substantiated” by the Illinois Department of Corrections, according to a document from IDOC that was reviewed by Capital B. The single page with the IDOC’s shield on the top center had several blank lines available, possibly, for an investigator connected to the case to explain their findings. Instead, those lines were left blank underneath a single box checked next to the word: “substantiated.”
“Logan is a difficult place. I’m not gonna lie. There’s a plan underway to close it, we are huge proponents of that plan. That facility, for a million reasons, shouldn’t exist,” Vollen-Katz said. She advises Kennedy and Martin to reach out to their organization for support. “Our information should be available inside Logan, and we are a privileged mail recipient, so if she writes privileged on the envelope, it should be treated like legal mail.”
In Martin’s last correspondence to Kennedy in July, she talked about the unbearable heat they’re experiencing while she’s in solitary confinement. Kennedy said he has been filing his own complaints, and making phone calls, but doesn’t know what else to do beyond that.
The National Council says it has supported Martin since Capital B informed the nonprofit organization about her case, in part, by including her name in their rallies and marches.
Another recommended resource in Illinois is the Women’s Justice Institute, a national “think and do tank” organization whose aim is to end women’s mass incarceration. Neither organization provides legal services, but has connections to other legal services such as the Uptown People’s Law Center, and resources that can relay messages to prison officials letting them know that there are people outside those walls who care about the women behind bars.
“I’m just getting fed up,” Kennedy repeated. “I’m getting fed up, and I’m trying to be strong for the kids. Keep a strong face for them.”
