Monday, May 13, 2013

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.

Saturday, May 4, 2013

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"