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.