Beard Must Go: California Needs a Fresh start in Corrections, not a Cover-up for Business as Usual

When Governor Brown appointed Jeffrey Beard to be the new Secretary of Corrections in California last year, it was supposed to signal a new era.  After decades of Correctional leaders who were insiders, brought up in a system that had normalized a state of permanent crisis and systemic inhumanity, Mr. Beard looked to be reason for hope; a respected correctional leader from a State without such a disgraceful record and indeed, an outside expert who had provided testimony against California in the landmark Brown v. Plata case. Unfortunately, Secretary Beard's public statements since coming to the job reflect a complete failure to acknowledge the gravity of the human rights abuses his agency is guilty of and an apparent commitment to defend the status quo at any cost.  Recent examples include his petulant refusal to take seriously the danger posed by Valley Fever to vulnerable inmates (this in a system that the US Supreme Court castigated for its "deliberate indifference" to the medical care of prisoners for decades) and his fear mongering on the consequences of complying with the federal courts population cap.  Now his public statements demonizing the hunger strikers and defending California's indefensible SHUs (their terminology for total lockdown isolation prisons, known generically as supermax) make clear that all hope for change in this administration should be abandoned.  Its time for a protest movement and direct action campaign to force real change starting with Secretary Beard's resignation.

Secretary Beard's recent LA Times Op-ed piece trashing the hunger strikers and defending the SHU is a perfect example.  As major human rights organizations have established (read the Amnesty International report here), California's super isolation facilities are an outlier in a country that is already a global outlier in its reliance on these inhuman prisons.  While in most states that use supermax prisons, prisoners are there for specific acts of criminal violence, and for a limited period of time, California uses its SHU mostly for prisoners suspected of being members of prison gang, and keeps prisoners there indefinitely.  As a result scores of prisoners have been held in the SHU for decades (far longer than any Guantanamo prisoners).  I have written before about the Orwellian quality of California's "gang problem."  Having long ago abandoned any effort to offer meaningful work, education, or rehabilitative treatment in its insanely large and overcrowded prisons, the creation of a gang system to provide some level of predictable order was inevitable, and must be seen as a defacto public policy of California (and indeed there is plenty of empirical evidence of the system's complicity in organizing and sustaining the racially defined gangs).

Secretary Beard is not responsible for this situation, but instead of working to change it he appears to be committed to defending the status quo.  His Op-Ed piece is full of alarming claims about the murderous behavior of the "gang leaders" who are supposedly forcing the strike on others, but CDCR denies journalists and external experts access to the prisoners so we have to rely completely on Secretary Beard for the veracity of claims that conveniently fit his interest in ending the strike and the public attention it has brought.

Many of those participating in the hunger strike are under extreme pressure to do so from violent prison gangs, which called the strike in an attempt to restore their ability to terrorize fellow prisoners, prison staff and communities throughout California.

Really, I thought the whole justification for the SHU was to prevent these leaders from terrorizing and pressuring other prisoners.  If they can force inmates who are locked down 23 hours a day to deny themselves food, what exactly is the SHU supposed to be accomplishing?

For decades, California has had the most violent and sophisticated prison gangs in the nation. When gang violence exploded during the 1970s and 1980s, and crime rates around the state rose to record highs, state prisons felt the impact. Between 1970 and 1973, 11 employees of the California Department of Corrections and Rehabilitation were slain by inmates, and many others were brutally assaulted. 

This is internally contradictory.  The violent explosion took place between 1970 and 1973, more than a decade before the first California SHU was opened.  By then violence (much of it related to the political struggles across the country in the early 1970s) had largely abated.  As plenty of evidence suggests, the SHU was really created to help justify and manage California's mass incarceration juggernaut.  There is no public evidence linking California crime rates with internal gang activity in prisons.  If Secretary Beard has the statistics to prove this he should publish it.

After this turbulent and violent time, and in response to the growing threat of gangs, the corrections department created SHUs to safely house gang members and their associates while minimizing their influence on other prisoners. Restricting the gangs' communication has limited their ability to engage in organized criminal activity and has saved lives both inside and outside prison walls.

Huh? Again, if the SHU works, how is it that these gang leaders can manipulate prisoners throughout the state.  If it doesn't work, why are you defending it?

There are SHUs at four prisons in California. At three of them — in Tehachapi, Corcoran and Folsom — there are outdoor-facing windows in the cells that allow for direct sunlight. At Pelican Bay, all SHU cells have skylights. In all of the facilities, inmates in the SHU have radios and color TVs with access to channels such as ESPN. They have weekly access to a law library and daily exercise time.  

Please, being locked in a closet 23 hours a day, 7 days a week, for 10, 20, or 30 years is ok because you have a skylight, and access to ESPN?  I'm sure the access to television and radio does mitigate the isolation, but only to a point.  Indeed Amnesty International was well aware that California SHU inmates can purchase a television (see page 24 of their report) and still condemned the SHU in unambiguous terms:

Amnesty International considers that the conditions of isolation and other deprivations imposed on prisoners in California’s SHU units breach international standards on humane treatment. The cumulative effects of such conditions, particularly when imposed for prolonged or indefinite periods, and the severe environmental deprivation in Pelican Bay SHU, in particular, amounts to cruel, inhuman or degrading treatment, in violation of international law.

If you doubt that, try spending a week locked in your bathroom accompanied by a radio and a color TV.

Even so, we remain committed to improving our facilities and policies. The department has brought in outside experts to evaluate our gang-management strategies. Based on their recommendations, we implemented a new comprehensive gang-management strategy last fall.

And why should anyone believe you when you are willing to manipulate facts and demonize people who are risking their own lives to demand some recognition of their humanity?

So what is this really about? Some of the men who participated in the last hunger strike have since dropped out of the gangs for religious or personal reasons, and they said it best in recently filed court declarations. "Honestly, we did not care about human rights," one inmate said about the 2011 hunger strike. "The objective was to get into the general population, or mainline, and start running our street regiments again." Another described the hunger strike this way: "We knew we could tap big time support through this tactic, but we weren't trying to improve the conditions in the SHU; we were trying to get out of the SHU to further our gang agenda on the mainline." 

How convenient that they are saying things that exactly fit your narrative that SHU prisoners are craven manipulative terrorists.  Where is the objective evidence that anyone actually made these statements?  No one else has regular access to these prisoners and you and your staff have zero credibility when it comes to determining why prisoners would engage in a strike that is directly challenging a policy you remain deeply committed to.  Let the strikers hold a press conference, or give the media individual access to any SHU prisoner they want to speak with, and then we'll see.

The leaders of these four gangs are directly responsible for at least five ruthless murders, 35 violent assaults, including stabbings, and they have racked up more than two dozen violations for possession of weapons and other contraband.

Who are we talking about?  California has thousands of people locked up in the SHUs.  Are they all responsible for these murders?  If there is evidence that people have killed others or even engaged in weapons and drug smuggling, why isn't SHU placement based on those kinds of charges rather than the Orwellian charge of being a "gang associate."

Secretary Beard has been on the job less than a year.  That may seem very little time to give an administrator to change a system that has hardened into a grotesque structure of inhumanity over decades.  But it is not too much time for a leader to send clear signals to the public about what kind of system we have, and what kind of system we want to have.  A reform leader would have spoken to the public honestly about the difference between tough and deserved punishment and cruel, unusual and degrading treatment and would be taking the opportunity of a fresh start to begin the process of atonement, accountability, and forging new directions.  In making the hunger strike an occasion for demonizing and deception, Secretary Beard has already proven he's not that leader.  It is time for change, starting at the top.

Civil Disobedience and Uncivilized Punishment: Run Edward and Keep Running

Edward Snowden's father recently gave an interview in which he rejected the idea that his son should come home to face US punishment (read the full story in the Guardian here):

He is going to be thrown into a hole. He is not going to be allowed to speak." The 52­year­old said he had been as "surprised as the rest of America" when his son, who worked for a contractor, was revealed as the source of the leaks about surveillance by the National Security Agency to the Guardian. "As a father it pains me what he did," Snowden said. "I wish my son could simply have sat in Hawaii and taken the big paycheck, lived with his beautiful girlfriend and enjoyed paradise. But as an American citizen, I am absolutely thankful for what he did." 

With Bradley Manning facing the likelihood of dozens of years in prison, despite no evidence he harmed anyone, I could not agree more.  There was once a tradition in this country of people breaking the law for principled reasons, typically to protest or expose even greater moral wrongdoing, but accepting their lawful punishment as a way of underscoring their personal commitment to the polity and its laws.  However that belonged to a time when America believed in civilized punishments that had some proportion to the crimes committed.

In the age of Bush and Obama, American punishments reflect a level of viciousness and degradation that no principled person should be willing to accept for themselves or others.  Bradley Manning, even before he was convicted of anything, was subjected to treatment that would be considered a human rights violation in any civilized country but raised hardly a word of concern from press or politicians today.  While criminals on Wall Street who have ruined the lives of millions receive no punishment and indeed the solicitude of the Obama Administration, ordinary and political criminals in this country are subject to punishments that are cruel, degrading, often amount to torture, but are by no means unusual (in fact they are routine).

Given that fact, the days of sacrificial civil disobedience are behind us.  Put principle and pious appeals to come home aside Edward, and follow your Dad's wise advice.  Run Edward, run, run, run....

Race and Reasonable Doubt: Notes from the Sanford Florida Verdict

The official media narrative is in.  The acquittal of wanna-bee neighborhood guardian George Zimmerman for the fatal shooting of Trayvon Martin reflects the impenetrable wall that the law and the trial judge set up between the narrow legal questions of culpability and the broad social issues that had animated passions in the case: gun carrying in public and racial profiling.  But do not buy this part of the narrative.  While the legal issues may have been narrow and the evidence carefully filtered by the judge, whether consciously or not, race was central to the jury's considerations in Sanford this past weekend.

George Zimmerman admitted he fired his gun into the center of Trayvon Martin's body, from which a jury could and normally would infer that he intended to kill Martin.  Normally that would be enough to establish 2nd degree murder.  Here however Zimmerman claimed "self defense."  Even though Zimmerman never took the stand, the jurors had to consider his story presented in police reports and forensic evidence.  The jury had to consider whether Zimmerman reasonably feared that he would die or suffer grievous bodily harm if he did not use lethal force.  Does an adult with a gun in his pocket have a reasonable fear that someone who has punched him and is now straddling him and pounding his head on the pavement is going to cause his death or at least grave bodily harm?  That is where age, gender, and race do their work.

Imagine that Trayvon was a 17 year old female, a 54 year old white male, or even a 17 year old white male.  In all of those cases the prosecutors would have had an easier job convincing the jury that Zimmerman acted recklessly in firing his gun.  It is true that teenage males are more associated with aggression, anger, and violence in our culture than either females or older males; but young black men are endowed with a legendary level of anger by our cultural imaginary (and one typically associated with danger to white people).  In scores of popular cultural references young black men are depicted as exploding into legal violence with little provocation or warning.  In its own way this cultural construction reflects an acknowledgement of the historical wrongs done against African Americans and the resentments which this treatment would give rise to.   It is this cultural imaginary that was so successfully invoked by "black power" political leaders of the 1960s and 1970s from Huey Newton to Jesse Jackson Sr. and Reverend Jeremiah Wright, and which candidate Barack Obama had worked so hard to distance himself from with his calm demeanor, starched shirts, and studied refusal to give voice to racial grievance.

It is true that the defense was not able to introduce potentially prejudicial evidence about Trayvon Martin's past, including that he had used marijuana and that he had been involved in some  minor fights at school.  But in convincing the jury that George Zimmerman was reasonable in fearing for his life, the defense had a wind at its back that would not have been there had Trayvon been female or white.  Think about Zimmerman's story again.--- He was on his way back to his car in the gated community.  Suddenly, out of the dark, Trayvon attacks him, punching him to the ground, straddling him, pounding his head into the pavement with a vicious force.--- Now the jury knew that Trayvon had gone to the store to get candy and that he was talking to a friend on his cell phone just before the incident; so they had no immediate context which could explain why he might suddenly act with violence.  All they had was his race and the racialized cultural narratives about anger and violence that are part of the American legacy of racist violence.  For reasonable doubt, that may have been all they needed.

Hunger

Today, July 8, 2013, prisoners in California's supermax "SHU" units (for Secured Housing Units), are commencing a hunger strike and work stoppage, their second in two years (read the solidarity statement here).  This is tragic.  Hunger strikes are an extraordinary act of self deprivation by people who have almost nothing.  They can result in the deaths of those involved and compel prison staff to engage in degrading practices like force-feeding to prevent that.

This desperate step indicates the depravity of California's SHU policy and its recalcitrance in reconsidering it in the face of mounting criticism from human rights organizations (read Amnesty International's 2012 report here) and the lack of any empirical evidence that this exceptional penal method is justified.  We keep more people, in worst SHU conditions, for longer, than any-other state on the planet.  I ask all readers of this blog to use their social networks to call on Governor Brown and California's Secretary of Corrections Jeffrey Beard [Actually a search of their website shows no way to contact them other than to do business] to meet the prisoners' five core demands (read them here) which amount to respect for basic human rights: to be treated as an individual; to have a horizon of hope for release from inhuman isolation conditions; to be given an environment fit for human psychological and physical health.

Supermax style prisons are an American abomination that are rejected by most other societies and considered a human rights violation in many.  Total isolation of prisoners without meaningful activities, visitors, or meaningful human contact has historically been reserved for disciplinary punishments limited to weeks or months.  In California's SHU scores of prisoners have served more than twenty years of such conditions, and hundreds for more than ten.

Most SHU prisoners are there not for any crimes committed on the outside, or disciplinary violations on the inside, but because prison officials have determined that they are an "associate" of one of the racist prison gangs that dominate the social order of California prisons.  Once dubbed an associate, based on evidence that does not have to be tested, a prisoner can never be released unless they "debrief" against the gang they are suspected of being an associate of.  For those falsely believed to be associates, this is impossible.  For those who in fact were associates, this means they are a "snitch" who will need to be in protective custody for the rest of their term (a somewhat less brutal version of the same isolation).

The State continues to claim that SHU isolation is necessary to keep gang violence under control in the State's sprawling and still extremely overcrowded prisons, but there is no good evidence that this works according to criminologist and legal scholar Keramet Reiter who carefully examined the State's case in her Berkeley dissertation (a recent article on supermax and California here).

More accurately, the SHU is necessary to maintain the State's ideological justification for its draconian prison sentences and inhuman prison conditions.  That justification, which holds that California prisons are filled with committed criminals who represent an unchanging risk of violence to Californians, implies that within this class must be an even more threatening elite, "the worst of the worst".  Since our prisons offer no meaningful rehabilitation or incentives for self reform, only deeper deprivation can provide a tool for control for this class.  In fact, the State has long ago ceded to the prison gangs responsibility for maintaining a social order inside the prisons, and openly cooperates with their recruitment and operations, but the need to justify this monstrous enterprise of human warehousing requires a veritable monster factory, which is what the SHU is.

The warped security logic behind SHU and CDCR generally is well expressed in a particular policy on photographs highlighted this morning by KQED's California Report in their excellent reporting on the strike. Under the policy, in place for over 25 years before it was finally changed after the 2011 hunger strike, SHU prisoners are not allowed to have photographs taken of themselves to send to their families or anyone else.  The policy was justified based on the claim that these prison gang leaders used their photos as "calling cards" to intimidate other prisoners.  While this claim is fascinating to a student of penology like myself (with its intriguing echoes of Victorian social customs), it turns out to have been based on mere anecdotes and passes not even the most basic tests of logic (does anyone believe a prisoner will be less intimidated because a prison gang leader can't leave his photo but has to leave something else, maybe a dead fish).

For this, people were stripped of the simplest piece of human dignity; the ability to be remembered as you are, by family members who have already lost all ability to touch or speak with you.

The hunger strike that begins today is a terrible thing.  If it is allowed to go on people will die for the crime of demanding to be treated like human beings.  Soon we will be debating force feeding. Enough...There is simply no reasonable justification for anything like California's SHU practices.  It is worst than Guantanamo and based on even less evidence.  The longest held Guantanamo inmates have been there for around 10 years.  The longest held SHU prisoner has been in for an astounding 42 years.  For generations Californians managed dangerous criminals of all sorts without a debasing their moral integrity by operating a SHU.

End this disgrace on our state.  Call upon Governor Brown and Secretary Beard to meet the prisoners' demands, and further, to announce plans soon to close these institutions and relocate all current prisoners within one year.

Prosecution Complex: Persecuting Aaron Swartz and Degrading the Constitution

There should be a difference between prosecution and persecution

The long “War on Crime,” America’s longest, has gone on a lot longer (’67 to now), and done a lot more damage to American law and society, than most people reckon (at least those who missed my 2007 tome, Governing through Crime: How the War on Crime Transformed American Democracyand Created a Culture of Fear (Oxford University Press)).  Perhaps the most troubling and persistent feature is not our outsized prison population, what we call “mass incarceration,” but an institution that arguably lies primarily behind that pathology, the outsized power of American prosecutors.  On a comparative basis, no other democratic society comes close to the discretion and politicization that combine in the American prosecutor.

First, in most countries, prosecutors are career civil servants working for nationally organized bureaucracies with a long history of being (relatively) depoliticized (often quasi judicial in nature).  In the United States we have two kinds of prosecutors, both in their own way deeply politicized. In the states, responsible for more than 80 percent of all prosecutions, prosecutors are, or work directly for, individual politicians who run for office regularly in a local constituency (generally a county).  In the federal system, prosecutors are appointed by the President, generally on the recommendation of the state’s senators (a potentially politicized process), and overseen by the Attorney General, often one of the most politically connected players in the executive branch (Robert Kennedy, Edwin Meese).

Second, in most countries prosecutors are circumscribed fairly tightly by a criminal code that has been developed overtime by a depoliticized and autonomous judiciary.  In the United States, prosecutors are free to rummage at will through state and federal criminal codes that are more like Harry Potter’s room of requirement than a legal instrument designed to bind law enforcers as well as citizens, overseen by judges that are themselves often elected and reliant on prosecutors and police unions for endorsements and donations.

Finally, in many other democracies countries, truly disproportionate sentences are rare, because the length of punishment is set by relatively autonomous specialist bureaucracies and because the conditions of imprisonment are regulated by human rights charters and enforcement organs.  In the US, disproportionate sentencing has become the norm and our Supreme Court has expressly held that it reserves judicial intervention to extreme examples like “life in prison” for a parking violation (Michigan v. Harmelin, Kennedy, J. concurring).

These features of American prosecution have always been there, but historically they were held in check by two forces.  1) Local politics meant that well organized communities could use their influence on “city hall” to push back against over zealous prosecution.  2) The limited scope of federal criminal law meant that federal prosecution was largely reserved for specialist criminals like bank robbers.

All of this changed with the “War on Crime”, declared by both parties in the 1960s, LBJ and Nixon in ’67 and ’68, and which began to transform state institutions a decade later in the late 1970s.  This federal influence continued with two further waves of  both cash and policy initiatives aimed at increasing use of imprisonment under Presidents Reagan and George H. W. Bush (1986-1991) and under President Clinton (1994-6).  The global war on terror, declared by  President George W. Bush in 2001, and pursued with some vigor by President Obama, represents a direct continuation of this original "War on Crime" and its forms of political subjectivity, logic and sovereignty.  Not accidentally, the War on Crime placed prosecutorial prerogative and power and the very heart of its strategy. 

First, prosecutors were viewed not as one side of an adversary justice process, but as the very head of a unilateral crime control process.  Both state and federal laws and practices have changed to give prosecutors unprecedented power to target individuals and groups.  With their unique posture of being an executive leader with a mandate to fight crime, prosecutors have become the model political posture for all politicians hoping to become mayors, governors, or ultimately President.  Barack Obama was our first President since Gerald Ford who did not prove his bonafides first as a Governor by signing tough new criminal statutes into law or by seeking any carrying out executions of convicted death row prisoners. 

Second, convinced that slow court processing was preventing law enforcement from containing crime in the 1960s, state and federal reforms ever since have aimed at turning our justice system into a super efficient conviction and incarceration machine.  The best way to do that was to eliminate the right to a jury trial by gutting substantive criminal laws so as to remove any room for jurors to exercise any judgment about the seriousness of the criminal activity, and by raising criminal sentences so high that only the most fool hardy would go to trial rather than accept a “plea bargain” on the prosecution’s terms.  This of course also eliminate the one way communities could directly check prosecutorial overreach.

Third, violent crime in the 1960s and “terrorism” now, provide an emotional tenor to the justice process that inevitably raises the rhetorical and actual power of the prosecution and pushes it toward an identification of professional dedication with zealousness and down right meanness (think Nancy Grace or any of the female prosecutors on Law & Order over the years).

Fourth, wars are territorial, racializing, and preemptive by their nature.  The war on crime has pushed prosecutors from retail dealers in punishment to the kind of racial profiled whole sale targeting of young people of color and young people of any race engaged in activities view as radical.

The prosecution of Aaron Swartz, the brilliant young inventor and free access netactivist who took his own life while in the increasingly threatening grip of a federal prosecution that arose out of his successful efforts to copy large numbers of scholarly articles from jstor for purposes of free access to the public (whose tax money funds almost all of that research and many of the publications themselves), exemplifies many of these features of our persecutorial/prosecutorial complex.  (I agree with the analysis in this post which highlights the links between constitutional compromises made early in the War on Crime, and today's overreach).

The federal prosecutors used increasingly wide and expansive definitions of traditionally narrow but highly stigmatized criminal acts, like theft and burglary, to reframe clearly political acts into self interested acts intended to deprive others of their rightful property.

The close integration of federal and state law enforcement, forged during the war on drugs phase of the long war on crime, means that federal can defer to state when that serves their interests (as it appeared to when Swartz was initially handed over to the local Cambridge/Middlesex County court, and the state can defer to the federal as they did when the state indictments were withdrawn in favor of federal charges.  This kind of state federal cooperation, so celebrated as an achievement by politicians, effectively guts the local political pressure that is the only accountability on our justice system (see the late William Stuntz’s great final jeremiad, Collapse, for that case).

The expectation that you will plead guilty immediately or face extreme punishment meant that when Swartz balked at pleading and becoming an informant against other members of his movement (oh, did I forget to mention that routinely dangerous, degrading, and actually criminal behavior against your own associates is part of what the government now means by “accepting responsibility” for your crimes), his indictment was superseded more than a year later with a steroidal 13 count indictment that bore no reasonable resemblance to whatever harms or risks his deliberate actions had imposed on others.  When he took his own life he had real reason to believe he would spend the better part of his life in prison if he did not finally cave to the prosecutors demands. 

This is enabled by a normalization of prison time for even innocuous and sometimes virtuous crimes.  Carmen Ortiz, the US Attorney in charge of Swartz’s prosecution later claimed she would have accepted a mere 7 months in prison for Swartz’s plea, but why should incarceration a potentially devastating event even when kept to a minimum ever have been on the table.  If deterring Swartz and others from future acts of civil disobedience was the main point, a hefty fine would probably have done the job.

Finally, while Mass Incarceration has a Jim Crow color to it, whiteness is not ultimately a form of immunity, especially when its coupled with radical politics of any kind.  The war on crime was framed at moment when riots in cities were linked in the popular and law enforcement mind with radical political activists of all sorts.  This is especially true if your activism is reaching and appealing to privileged well educated citizens who have potential political clout.  Back in the 1960s new left activists of diverse racial backgrounds began to make considerable in-roads among educated younger people.  When largely symbolic acts of violence emerged, the federal government defined most of them as terrorists and killed, exiled, or imprisoned many of them.  

What should we do if we are truly appalled by the persecution of Adam Swartz and so many others?

Demand that President Obama and state governors, formally declare the 1960s war on crime over, and announce that with crime at rates lower than it has been since that era, the emergency like basis on which prosecutors and law enforcement agents have operated must come to a close.  Justice, restoration, reconciliation and prevention must become the new focus of a rebalanced truly realigned justice system.

Begin to make over-criminalization and persecutorial prosecution a political issue in its own right.  Let your local elected district attorney or county attorney know that you support an end to racial profiling, fair charging practices, and an emphasis on alternatives to incarceration and that you are prepared to campaign against them in the next election if you don’t see that happening in your community.

Finally, we need to take seriously Justice Kennedy’s invitation in Brown v. Plata, to place human dignity at the very center of our constitutional vision for criminal law.  Prosecutors take an oath to uphold the Constitution.  When prosecutors like Carmen Ortiz use the kind of ruthless methods she used against Swartz, even when it does not lead to the tragic end it did here, she not only fails to recognize his human dignity, she violates our right to be represented as the United States in way compatible with our commitment to that value.

ps. for anyone at Netroots, I'll be talking on this topic along with Marcy Wheeler, Elliot Peters (Aaron Swartz's lawyer), and Shayna Kadidal of the Center for Constitutional Rights, today at 3pm. at a session appropriately titled Beyond Aaron's Law.

Lessons from the "sordid decades": Reading the new revelations about miscarriages of justice in New York's "War on Crime" in the '80s and '90s

Any reader of the paper of record will be impressed with the series of impressive features dealing with various aspects of county level justice in the five boroughs that make up New York City.  While not all of them have cast their gaze backwards (for instance the superb recent series on delay in the Bronx County courts).  But many of them belong to what might be best understood as an effort to recover the real history of New York's war on crime during the last twenty years of the 20th century when high homicide rates and tabloid journalism helped create a state of emergency like mentality that infected not only law enforcement but even the non-tabloid journalism in the Nation's premier metropolis.

Perhaps the most impressive and alarming so far is the lengthy feature this past Sunday by Frances Robles and N. R. Kleinfeld on a series of possible wrongful convictions linked a celebrated now retired Brooklyn detective, and the Brooklyn District Attorney's office under Elizabeth Holtzman and the still serving Charles Hynes (and followed up today by a second story emphasizing the failure of prosecutors to uncover these problematic investigations themselves and the general lack of accountability at the prosecutorial level for miscarriages of justice.

The lead here is that some 50 cases of murder from the 1980s and 1990s in which now retired Detective Louis Scarcella served as a lead or participating investigator are being re-examined by the Brooklyn DA for indications of wrongful conviction.  Scarcella, who enjoyed something of a celebrity career before and after retirement due to his colorful antics and high profile crime investigations, has been shown to have engaged a pattern of investigatory practices that to say the least are now considered high risk for miscarriage of justice including witnesses with a high motivation to fabricate evidence and a pattern of confessions taken from suspects who claimed to have invoked their right to silence or said nothing incriminating, and for whom no contemporaneous interview notes were produced.  Much of this only came to light recently due to the successful exoneration of David Ranta, convicted of murdering a Brooklyn Rabbi in the late 1980s, a case that fueled racial tension in Brooklyn until Ranta, white, was convicted based on a confession taken by Detective Scarcella as well as testimony from witnesses whose lack of disinterestedness in the case was concealed at the time.

One of Detective Scarcella's witnesses was Teresa Gomez, a now deceased woman who testified  in at least two murder trials of the same suspect for totally different murders (which she claimed to have coincidentally witnessed even thought they happened in different places and times).  Gomez, a drug addict was described by a colleague of Scarcella's as "Louie's go to witness."  Scarcella, who to his credit and advantage chose to be interviewed by the Times, denies providing her with more than small cash handouts, but others imply she received drugs.   In one case her testimony was successfully impeached by a defense lawyer aided by a family paid for private investigator.  But other defendants did not benefit from such aggressive defense approaches.

There seems to be momentum for a serious look at not only Scarcella's cases but other homicides from the same period in which it is fair to assume that Scarcella's tactics were not unique.  Here I'm more interested in what the story tells us about the mentalities which swept New York in that period which the authors aptly describe as "sordid years."

The questions about Mr. Scarcella stem from the sordid decades when the city saw as many as six homicides a day, and the police and the district attorney struggled to keep up.

While the journalists not surprisingly emphasize the degree to which the systemic pressure of so many homicides had on the quality of investigation and prosecution (New York City's homicide rate peaked in 1989 at close to 2,000 murders, more than three times the current level), we should also not miss the degree to which the sense of social threat conveyed by these homicide numbers and all the more so by the tabloid newspapers of that era gave those same detectives and prosecutors as sense of legitimacy in taking any steps necessary to make sure that someone was held responsible, even if reliable evidence linking a potentially prosecutable subject to a specific crime was lacking.

Now Detective Scarcella helpfully addresses this issue directly and beautifully (with his looks and articulateness he should have ended up with his own spot on Law & Order the long running series that began in that era).

“Are you kidding me?,” he said Saturday in an interview.“Wow. This is quite a bit of a shock. Let them look at my convictions. I will help them if they need me. I don’t know what else to say. I expect he will find nothing,” he said....

“I couldn’t sit with my family the past 30, 40 years if I had hurt an individual,” he said in a previous interview. “I never fudged a lineup in my life. I never, ever took a false confession.”

Indeed, I believe Detective Scarcella couldn't sit with his family if he felt he had "hurt an individual" as opposed to a class, a group, a category.  I also suspect that for him the individual guilt of these suspects was less important than his belief that they were all part of a class of young Black and Latino men or boys, living in the very high crime neighborhoods were the murders happened and in many cases, participating in forms of street life and petty crime from which these murders arose.  In short, they were enemy soldiers in a war on crime in which individual responsibility for particular acts was as irrelevant as it is when a drone strike today is launched on a suspected militant convoy in Pakistan (or is it a wedding party?).

Of course it was not just Detective Scarcella or even Charles Hynes who decided that it was ok to play by their own rules, it was a broader political context that repeatedly declared a "war on crime" from the late 1960s through the late 1990s.  Each of these had its own context and none was unrelated or independent of real crime trends.  The especially elevated homicide rates of the late 1980s and early 1990s associated with the crack epidemic in American cities formed a critical emotional background to war on crime tactics.  As Scarcella explained to Dr. Phil back in 2007 in an exchange quoted by Robles and Kleinfield:

In 2007, Mr. Scarcella appeared on the Dr. Phil show as an interrogation expert to discuss false confessions. At one point, he said: “Are there rules when it comes to homicide? No. No, there are none. I lie to them. I will use deception. The bad guys don’t play by the rules when they kill Ma and Pop, shoot them in the head, ruin the lives of their family. I don’t play by the rules.”

The upshot of the new attention on wrongful convictions in the 1980s and 1990s by the Times and other journalists (for example the recent documentary The Central Park Five about the five Harlem youths who were convicted of one of the most infamous crimes of the 1980s only to be exonerated after serving prison sentences ) is likely to be some internal investigations within individual District Attorney's offices, and may be some legislative hearings.  More needs to be done.

First, public officials from President Obama down (and importantly including state governors) should go on record declaring an end to the "war on crime" and "war on drugs."  Going forward, we should publicly declare our intent to return to our historical commitments to equal justice under law for every individual suspected of committing serious crimes.  Neither victims or ordinary citizens were served by a political rationality that unleashed Detective Scarcella and his colleagues on New York's plentiful pool of poor, young, minority arrestees.

Second, we need to review not just individual cases linked to particular police officers or prosecutors, but all prisoners serving sentences imposed during the 1980s and 1990s.  Our public mentality in that era encouraged police and prosecutors to maximize the penal incapacitation of minority adults in marginalized urban and rural communities no matter what the crime or who was guilty.  The lives of millions have been harmed and the social capital of whole communities set back.  After a thorough process of truth and reconciliation our legislatures should seek to rebalance our penal codes and issue compensation where due, while our executives should seek use their clemency powers to deliver individual relief to prisoners sentenced to extremist sentences.

Third, we should revisit the whole way we do prison around a recognition that no matter how careful we are there will always be innocent people convicted of serious crimes.  If we all took seriously the possibility that we or our love ones could fall prey to the tragedies detailed in the Times article and in many other recent stories, how would the change the way we punish people?

• A prison sentence should not mean that you can expect to experience cruel, inhuman, or degrading treatment at the hands of your guards or fellow prisoners as a matter of course and have to decide early on whether to be a predator or prey.
• A prison sentence should not mean your life in the community outside is over.  From the moment you enter prison you should have a path home and the tools to get there.  With a reasonable eye on security, every means for keeping prisoners in communication with the outside world should be facilitated.
• Being wrongly convicted and sent to prison should be more like being the victim of a terrible accident which leaves you alive but disabled.  You should be able to look at your fate without despair or a sense that your human dignity cannot survive the ordeal you are about to endure.  Obviously governments should do everything possible to reduce the number of both terrible accidents and wrongful convictions, but recognize that both will happen, we should make sure that loss reduction and compensation are at the forefront of our efforts.

Living it Up at the Hotel California: For Jerry Brown and California's Political Leadership It's Always 1977

Watching California politics these days I can't help feeling that I'm lost in the late 1970s, when I first moved to the Golden State (in August of '77 with the Eagle's hit released that March still riding high on the charts).  Its not just that Jerry Brown is still governor.   Its that when it comes to prisons and crime policy, the Governor and entire political establishment are still acting like they are lost in the 70s.   Then the state was experiencing nearly twenty years of escalating violent crime.  Instead of being reinforced to address this frightening trend, the state's major correctional institutions were decimated by a series of destructive policy choices including  Ronald Reagan's dismantling of the mental health system (and his covert campaign to keep the prisoner population small to avoid raising taxes) and Jerry Brown's misguided Determinate Sentence Law (which severed any connection between prison sentences and public safety).  The public lost all confidence in the increasingly incoherent system and was easily led down the road to mass incarceration.  A political culture steeped in this combination of fear and mistrust of government learned to "govern through crime", achieving popularity by passing extreme sentencing laws that only reinforced fear and mistrust.

The latest evidence that we remain stuck in this Ground Hog Day mentality about crime is the Governor's contemptuous response to the Coleman-Plata three-judge court order requiring a plan to meet the longstanding population cap.  I will post a more detailed analysis of the Governor's "plan" later.  Suffice it to say it is a document reeking of the past.  Consider that on a list of possible ways to achieve the overcrowding goal (an Orwellian concept that would still leave the State's prisons grossly overcrowded by any baseline other their own disastrous recent past), the first three all rely on incarceration (building prisons, using jails, sending more prisoners to private prisons).  The State's new correctional chief, Jeffrey Beard, has gone from being a respected national professional to sounding like a political hack in record time; warning ominously at a press conference that the plan was being proposed under protest and would endanger Californians (meanwhile according to the judicial monitors, he continues to preside over human rights violations on a daily basis).  The Governor and the Director of Corrections apparently have uniform support among both parties in the legislature where even liberals like Senate President Darrell Steinberg take a no-compromise stand against "early release" for any prisoners.

But while among the Sauvignon Blanc sipping Baby Boomers that the Governor and the Senate President and their contributors hang out with, it must always seem like 1978, when names like Charles Manson and George Jackson were enough to silence opposition to the death penalty and mindless prison sentences, there is evidence that for younger Californians things have change.  Consider that in 1978, the initiative to expand California's death penalty to apply it to many more murders passed overwhelmingly with 71 percent of the vote, while in 2012, despite no support from the State's liberal leaders and a modest campaign, a proposition to repeal the death penalty altogether failed narrowly, 52 to 48 percent, and an initiative to reduce the State's extreme 3-Strikes law passed comfortably.

The reasons for the change are complex but all around us.  Violent crime began to go down in the early 1990s and despite California's astonishing lack of innovation and leadership on crime policy (outside of LAPD), it remains low by historic standards.  There is plenty of evidence around the country that innovative policing and mental health strategies can take a further bite out of violent crime and bolster public confidence to use and occupy our urban streets.  Finally, the State's disastrous management of the prisons led the Supreme Court to denounce the torture like conditions prisoners were exposed to as incompatible with the norms of "civilized society" and affirm the population reduction plan the Governor is now campaigning against.

Within the echo chamber of Sacramento, and among cable news watchers, the Governor's pandering on crime fear, and tough talk about building more prisons, must sound awfully good (its certainly awfully familiar).  In the meantime, the young people I teach every day at Berkeley seem less worried about crime than about their economic future as the seniors among them prepare to enter a job market still at emergency levels of unemployment, and all of them ponder the challenges of building families in an increasingly precarious environment of drought, fire, and crumbling infrastructure.

Last thing I remember, I was running for the door,
I had to find the passage back to the place I was before, 
"Relax," said the night man, "We are programmed to receive, 
You can check out anytime you like... but you can never leave"