Yes Virginia, there is a death penalty: Reflections on the Christmas Moratorium

On the 19th of December, the paper of record, the New York Times, ran a story discussing the lower number of executions (39) in 2013 than in a previous years; a trend that began sometime ago (read it here).  The causes of this trend are complex and fascinating and worthy of more comment, but here I want to point out something else.  How did the Times know on December 19th how many executions there would be in 2013? That still left more than ten days in 2013 and with more than 30 states with capital punishment still on the books, and more than 10 that regularly execute people, surely a last minute surge might have carried 2013 up and over the not much higher number of executions in 2012.

In fact some real problems with execution drug supplies might actually prevent a surge of executions but even a trickle might have done it but that isn't the reason either.  The truth is that the Times and everyone who knows about capital punishment in America knows that in fact (although nowhere prescribed by law) there is in America (even in the most die hard death penalty states) a Christmas moratorium.  Actually, I'm told it begins somewhat before Thanksgiving and lasts until after January 1.

But why?  Surely if the story we tell ourselves about the death penalty is true this is a very strange outcome.  If executing a murderer is a positive moral act which delivers necessary justice to the community and especially the victims, why don't we work up to the last minute on Christmas Eve executing the large backlog of prisoners under sentence of death who have exhausted their appeals?  Hell, the states are not bound to obey federal work holidays and law enforcement operations continue round the clock generally, so why not executions?

Ok, so perhaps this is a concession to the families of the condemned.  It can sure spoil your Christmas to be contemplating a son, brother, or father who was just strapped to a gurney and shot full of lethal chemicals by state officials acting at the behest of your community only a few days or hours earlier (indeed any death at or near Christmas is almost always considered an especially stiff blow in our culture).  But what about the victim families?  They have to spend every Christmas thinking about their murdered loved ones.  Wouldn't giving them the first Christmas following the delivery of usually long promised execution of "justice", "closure" as it is approvingly called by everyone, be the best kind of Christmas present?  Even if they don't outnumber the families of the condemned, it seems a strange that in almost every other thing respecting the death penalty we favor the families of the victims, why not here?

Is it because Jesus wouldn't like an execution, and, after all, its his birthday (observed)? Ok, I'm not a Christian, so I'll tread carefully here.  From my reading of the New Testament I would have no problem coming to that conclusion (and he was after-all, executed himself); but a fair observer of our culture would have to conclude that real Christians as a community are split on the question of what  Jesus would do about capital punishment.

The answer it seems to me is inescapable.  Christmas, whether you are a Christian or not, is globally recognized and admired for the its message of celebrating humanity (of course many of my Jewish ancestors in the Russian Pale during the 19th century would have found this deeply ironic as a Christmas pogrom came down on them).  The divinity of Jesus may be debatable, but the message that the dignity of divine creation is one embodied in humanity itself has become a central core of our international human rights tradition and deserves universal acceptance.  It is a message that finds independent expression in Judaism, Islam, and most of the world religions.  The death penalty is incompatible with recognizing the humanity of the person being executed and the humanity of the people who have to carry out the execution.  That is the reason a Christmas moratorium (I almost wrote truce) is observed in Texas, Virginia, and everywhere in the United States.  Whatever may have been true in 1789, or 1868 (when the 14th Amendment was adopted), in today's world what denies humanity is not a moral good.  At Christmas, at least, we acknowledge that.

So Virginia, the hard truth is this.  Santa Claus is a myth.  That means its not true or false; it depends on beliefs and the cultural practices that give them life.  If you woke up this morning and found presents under your tree Santa Claus does exist.  The idea that executing people is a positive moral good, in contrast, is simply a lie; and the Christmas moratorium proves that everyone knows that.

Mass Incarceration and Mass Deportation: Twin Legacies of Governing through Crime

One afflicts mostly American citizens, disproportionately those of African American and Latino backgrounds from areas of concentrated poverty, but also many white and middle class citizens who fall into the hands of police and prosecutors.  The other afflicts exclusively non-citizens living in the US without federal authorization, or in violation of the terms of their permission.  One results in people being kept in prisons for years and decades at a time.  The other often starts with detention that looks and feels a lot like imprisonment, and then culminates in the person's forcible removal from the US to a country in which they hold formal nationality but may have few or no connections and often face grave dangers.  One is driven largely by state and local officials, with considerable encouragement and support from the federal government.  The other is driven by the federal government, with considerable encouragement and support from state and local governments (although now also increasingly some opposition).  One is considered punishment for crimes.  The other is consider a civil action to protect the national integrity of the US.  But despite these differences mass incarceration and mass deportation are off-spring of a common source, the US political system's broad turn toward race tinged fear, violence and coercion to govern American society since the 1970s (of what I call, "governing through crime").  What follows are some common features.

• Both mass incarceration and mass deportation are rationalized on the basis that they are primarily necessary to keep Americans safe from violence.  This persists despite the fact that violent crime metrics in most parts of American society are at the lowest level in decades, few criminologists believe that mass incarceration played a significant role in reducing violence, and almost no credible evidence exits linking non-citizens here without federal permission to violence (quite the contrary).
• Both mass incarceration and mass deportation are forms of governing that operate on masses, groups, classes, and races, rather than individuals.  They rely on racial profiling and rigid rules designed to remove the ability of judges or other officials to take individual and contextual circumstances into account.
• Both mass incarceration and mass deportation (therefore) systematically deny the human dignity of the individuals their operations inevitably target, and result in conditions of confinement and forced removal that have been repeatedly found to violate human rights obligations of the United States under our Constitution and which also offend international treaties such as the Universal Declaration of Human Rights, and the International Covenant of Civil and Political Rights.
• Both mass incarceration and mass deportation deliver some of their most destructive effects on the family members of the individuals imprisoned or detained who find themselves denied parents, partners, and vital emotional and economic support despite having broken no laws. The spillover effects also diminish the freedom and dignity of whole communities whose residents must move through life with their heads over their shoulder looking out for police or immigration enforcement officers.
• Both mass incarceration and mass deportation remain powerful engines of destruction, despite lack of current visible public support, and despite tremendous fiscal costs, largely because of political calculations that any deviation from rigid punitive policies will be risky, and the resistance of powerful financial interests with great lobbying ability to policy changes that would diminish the high profits they receive from servicing the imprisonment-deportation complex.

As we end a year in which President Obama and Attorney General Eric Holder have given important signals that they are aware of the moral and human destruction of both mass incarceration and mass deportation, we must endeavor to produce the kind of grass roots social movement that will demand a full dismantling of both these legacies of the era of governing through crime.  As the New York Times reports in a story today on immigration (read it here) there is an increasingly visible protest movement against mass deportation.  We need an equivalent movement against mass incarceration.

"Justice" in the Murder Years: More Tales from the Brooklyn Crypt

The New York Times continues its on going series of investigatory features on wrongful convictions or likely wrongful convictions produced by Brooklyn's law enforcement and court system in the 1980s and early 1990s with a gripping and sad story by Frances Robles on two Brooklyn teenagers (now 30 and 31) convicted of killing a corrections officer in an apparent car jacking in 1991 (read it here).  Many of these cases have involved Louis Scarcella, a detective with an reputation for always getting a confession and television detective looks that landed him frequently on television as a celebrity detective in the 1990s and 2000s, but whose repeated frequent use of the same boiler plate language in the "confessions" he extracted and repeated use of the same crack addicts as "eye witnesses" has more recently come under critical scrutiny by both the Times and the Brooklyn District Attorney's office.

I will leave you to read the details of this particular case.  It involves evidence of systematic malpractice in the Brooklyn detective's unit and the District Attorney's office, that points to a culture of indifference to legal or factual guilt.  Robles also gives us a fuller portrait of the trial process than we get in previous stories and it looks about as summary as some of the 18th century records from the Old Bailey.  Here was a trial for the lives (in prison, New York had no death penalty at this point) that lasted barely a day and involved an almost shocking lack of evidence.  Here I want to reflect on a few general features of the world of crime and criminal justice we see through the dark glass of these fragments from the crypts of Brooklyn's recent criminal justice past.

There is a sense of violent crime and in particular murder as a kind of normal drum beat.  These were years when the national and local murder rates were approaching their 20th century highs and many of these homicides were happening in the Brooklyn neighborhoods where Scarcella and his colleagues worked.  Both the teenagers caught up in the likely wrongful convictions here had been involved in repeated serious to violent crime and in the case of one of them seemed to be on an escalating path toward more violent crimes (which have apparently continued during a long prison career).  The extreme nature of crime in these years, and the wide dispersion of criminal behavior in the youth population, both operated as a context for police, lawyers, and court personnel, what law and society scholars call the "court working group", to develop a working philosophy in which the obviousness of the threat and the frequency of guilty justify systematic departure from the model of individual justice and the presumption of innocence.  I say this not to justify it, but to highlight how  clear the danger signs were that justice could go astray.  High crime and concentrated crime are reasons to strengthen court independence and legal constraints, but the politics favors weakening both.

It is often noted today that lengthy rigid sentences have driven defendants to give up their trial rights and plead guilty, perhaps even when they are innocent.  Here though the defendants demanded and got a trial, and the reasonable doubt it exposed seems staggeringly obvious from twenty years distance, they were convicted and sentenced to life (in one case even over the fact that the defendant was a juvenile being sentenced as an adult).  The defense lawyer seems to have done a good job addressing the holes in the prosecution case.  What went wrong?  A hint is captured in a quote Robles got from one of the murder victim's daughters who attended the trial:

Mr. Neischer’s daughter, Nakeea, who was 12 at the time of the trial, remembered of Mr. Bunn: “When they brought up the charges, he was laughing. I don’t know if he thought it was a joke, but as they read the charges and said ‘murder’ it went from giggles to not giggles. I remember thinking, ‘If you didn’t do it, why would you be laughing?’ ”

How the victims and the largely white professionals who made up the Brooklyn court system in the early 1990s saw these young black men is something we can only speculate on but two things resonate with other sociological work on the topic.  First, young men of color appear arrogant and socially hostile to white observers so commonly that it is hard not to think this is a feature in the eye of the beholder.  Second, to a shocking extent, the professionals couldn't see these young men as individuals.  The witness reported light skinned black men in the early 20s or late teens, the two men convicted were dark skinned and younger.  The original story suggested one had been shot, but neither had a wound.

Investigations are now continuing into other Brooklyn cases, especially those connected to Det. Scarcella.  However one wonders whether such procedures, launched decades after the events can hope to restore those injured by the abandonment of individual justice principles during this dark period of degrading fear (even more so after reading about the evidence of cover up efforts by police in this case).  Perhaps what is needed is a systematic solution.  Those whose demographic and social circumstances were once used against the should not have it work in their favor.  All prisoners from the era of near hysteria about homicide, 1975 through 1995, who are still in prison should be considered for clemency on the grounds that the entire system was so corrupted by fear and an abandonment of rule of law principles that no convictions produced by it can be fully trusted.  

Dallas 1963 and the Culture of Fear

Today Americans in many large cities are experiencing levels of homicide last experienced in the mid-1950s. This is the result of a crime decline across the country that began in the early 1990s when homicide levels were twice has high (or higher).  When you look at homicides on a graph, this steep decline marks the end of a period of high homicide that began in the early 1960s and which reached peaks in the mid to late 1970s and late 1980s.  This pattern has never been adequately explained by criminologists but its impact on American crime policies seems clear enough.  In the periods following both peaks American states adopted "tough on crime" sentencing laws designed to send more people to prison, for more time, and for more crimes than at any time in our history.  As a result our national imprisonment rate rose nearly 4x from 1975 to 2005.

I argued in Governing through Crime, that this was not a simple response to an exogenous shock, but rather one that became deeply intertwined with endogenous features of our political system, particularly the transformations in civil rights law and metropolitan governance that were already underway.  Cities were being transformed by the planned transfer of large portions of their middle class population to newly built suburbs and the traditional city political "machines" that had governed more or less since the gilded era through a structure of racial hierarchy were being destabilized by civil rights and deindustrialization.  It was not just violent crime spiking, but violent crime spiking in the midst of this reterritorialization of everyday American life that led to a period when America was in some respects at least governed through their fear of crime.  Kennedy's assassination may have been a foretaste.

Of course Kennedy's assassination in Dallas on November 22, 1963, was no ordinary urban crime, and Dallas no ordinary American city.  As Wade Goodwyn of NPR who has covered Texas and crime issues for thirty years, noted in a discussion of the Kennedy assassination this morning on Morning Edition Dallas then was a small city of about 700,000, 80 percent white, and with a leadership strongly committed to the Jim Crow social system that had dominated the city for 75 years.  Hatred for JFK among the city's elite had everything to do with race and with the Department of Justice's support for the civil rights position (never strongly enough for the supporters of civil rights).  If those elites didn't pull the trigger, it was easy for many Americans to conclude that the poisonous atmosphere of the city may have some how encouraged or abetted the crime (a conclusion Goodwyn notes, many Dallas residents came to share).

Yet visually the images of JFK's assassination that inscribed themselves on the brains of my generation were inseparable from the urban street scape where the murder took place.  Dealey plaza, a place that probably had no common name for many people until the event, was not a ceremonial space but the kind of city edge space between the more valued bits of downtown and the freeway that still connects central Dallas to its suburbs.  In my childhood, much of it spent in Chicago a city that experienced both the crime and the political turmoil of the time, those spaces always seemed to be places of menace, glimpsed quickly from a car on the way from a symphony orchestra performance, or downtown department store shopping trip, on our way back to an outer-borough neighborhood (my parents would never have lived in a "suburb").

Oswald himself, a drifter (in an extreme sense, having defected to the Soviet Union), the child of a single mother in an age that heavily pathologized such children (read my article on the role of criminological knowledge in constructing Oswald's "criminal biography" here), a communist, a traitor, a person given to street fights, and who was adjudged likely to kill by a probation officer when he was only 13, became a prototype of a dangerous killer for a society about to have a well justified moral panic about homicide.  For those of us who save the assassination in political terms Oswald may have been a patsy, for a majority of Americans, particularly in the first decade after the Kennedy assassination, Oswald was evidence of monstrous offenders lurking in the shadows of American cities like New York, New Orleans, and Dallas.

The other respect in which the assassination I believe would echo through the culture of control that followed was in its shock to the Presidency.  Franklin Roosevelt as "Dr. New Deal" had ushered in an era where the President was personally responsible for managing an ongoing existential crisis for the country, surrounded by expertise, but reliant on his own capacity for judgment and execution.  When Dr. New Deal became the war leader, this leadership model was fused with the warrior king model of sovereignty.  Kennedy's murder was a crushing blow to this complex.  Ever since Presidents have struggled to re-establish a mantle of competence while being routinely accused of monstrous conspiracies

To the Fruitvale Station

Thanks to the persistence of my wife who has insisted for some time that as residents of the East Bay we must see it in the theater along with fellow East Bayers, our whole family saw this remarkable film  a couple of weeks ago.  The film moved me to tears and then settled into my imagination where it has been ruminating since.  I'm not sure it is still in theaters, but if it is go see it now and root for writer director Ryan Coogler and The Fruitvale Station to get some Oscar nominations.  As has been well reported the movie takes up the last day of Oscar Grant, a young black East Bay man killed by a BART police officer during a bizarre and confusing encounter in the early hours of New Years day 2009.  Coogler, a 27 year old Oakland native, does not so much tell the story of Oscar Grant's death as set it in the contexts of his life, of what it is like to be a young black man in 21st century urban America, and also of the new geography of race and class in the East Bay.

The superb cast does an extraordinary job creating a full life for Oscar Grant (played radiantly by Michael Jordan who many GTC readers will remember from The Wire) as its last day plays out.  We meet his daughter Tatiana, played by Ariana Neal, his longterm significant other (and Tatianna's mother) Sophina (played by Melanie Diaz) and his mother Wanda (played by the amazing Octavia Spencer).  Sophina and Wanda, two strong adult women in his life, along with Grant's healing love for Tatiana, seem to be anchor cables that will keep Oscar, clearly going through a troubled patch with recent time in one of California's overcrowded and unhealthy prisons and losing his job, on positive path.  We also see how narrowed the economic space for working class men like Oscar seems in the East Bay.  Having his lost his job in a popular Oakland food store, we see Oscar driving through an urban landscape that appears to have lost most of its economic muscle.

One of the film's less obvious but insightful and significant dimensions is its portrayal of Oscar's male peer group as including a multi-racial set of young men in various locations in the crime, employment, incarceration landscape.  Resisting the overwhelming tendency of popular media to suggest that any criminally involved characters must be relentlessly and malignantly criminal, the film portrays the men overall as not only caring deeply for Oscar and being ready to be there for him in celebration and tragedy, but as providing an important resource for Oscar in finding employment, staying out of trouble, and remaining in a committed relationship.  The strong presumption that "bad apples" spoil the whole barrel has long legitimized "zero tolerance" policies in schools and mass incarceration policies on the streets.  Research I had the privilege to participate in drawing on life histories and interviews from young adults who grew up in Oakland's San Antonio neighborhood (not far from the Fruitvale BART station) produced lots of suggestive evidence that a diverse social network is a powerful resource to keep young adults in a position to access employment and educational opportunities.  An analysis of the data by my colleagues Deborah Lustig and Kenzo Sung, Birds of a Feather: Peers, Delinquency, and Risk (may require digital library access or pay wall) suggests that having close friends who have been involved in criminal activity or criminalization does not divert successful young adults who continue to know and benefit from contact with their delinquent peers without being "contaminated."

The East Bay, with its extraordinary diversity, unique history of racial and ethnic cross-alliances in labor and political struggles, and its potent and tasty civil-izing society of food, fresh in stores and wonderfully cooked in restaurants, lively streets, and yes, BART itself (too expensive but perfectly located for East Bayers) comes across beautifully in the movie.  If Fruitvale Station wins an Oscar nomination the nation may finally get a look at this extraordinary piece of itself that has long been a footnote between aging snap-shots of Berkeley in the 60s and celebrations of whatever San Francisco or Silicon Valley are up to next.

But if the film gives us reason to be celebrate the way civil society can heal itself, state forces, particularly police and prison officers, are powerfully and accurately  portrayed as nothing short of catastrophic for the security of the community.  Grant's prison experience, portrayed in flashback and then terrifyingly in real time (no spoiler here), highlights the racial gang system which compels virtually all California prisoners to "join up" for what passes for a social order in prisons that the state long ago abdicated any responsibility to maintain civilization in.  The fact that tens of thousands of our fellow citizens have passed through these degrading and racializing prisons is a shame that our state will live with for generations.  In the one scene in which we see Oscar strike a more menacing pose (toward the store manager who has apparently fired him some time ago), we can only wonder how time in the organized menace of the prisons now weighs like burden on his own sense of humanity.

The film's most searing portrayal is of course its close up on the conduct of the BART police.  Everyone knows the tragic way this ended, but the film offers a realistic view of how the attitude of relentless contempt that many police officers, not just BART police, project at young men of color (as documented by Victor Rios in his compelling ethnographic study also set in Oakland, Punished: Policing the Lives of Black and Latino Boys) sets up the conflicts that inevitably and too often lethally fall-out between them.  The film makes the rather unexpected but to my criminological eyes quite convincing choice to highlight that contempt rather than the still mysterious motivations of police officer Johannes Mehserle who was tried for Oscar Grant's murder and went to prison for manslaughter.

If the Fruitvale Station has a political agenda it is to dis-establish these destructive state apparatuses which are so costly and now stand in the way of a serious effort to reinvent urban security for the 21st century (consider the heavy handed policing of Oakland's monthly art murmers since a shooting last spring).  But for all its ethnographic realism, and critical edge, the film does the job of all cinema, perhaps all stories, turning the quotidian details of real people and places into the mythic material of a universal.  The film is  an elegiac invocation of both how much our lives are determined by forces beyond our control, but also how much power all of us have to change and to be a force for repairing and restoring our communities.  It deserves an Academy Award.

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.