Trump’s Vision of Law and Order Policing Already Failed NYC

Asked at the first presidential debate, how would you improve race relations?, Donald Trump stated: “expand stop and frisk.”  Ms. Clinton walked the Democratic politician line: “Everyone should be respected by the law, and everyone should respect the law,” but then she did pivot to “implicit bias.”  Still, Trump effectively bludgeoned with a key claim: stop and frisk reduced crime in New York City.  Did it?  UC Berkeley sociologist Loic Waquant, through his work and in his devastating polemic “Punishing the Poor,” provides a refutation.

lw

Badass scholar Loic Waquant, from his website http://loicwacquant.net.

1. What was “Broken Windows” policing?

After 1993, anyone caught panhandling or loitering in the city or on a subway, playing a stereo too loud, writing graffiti, urinating outside, hopping a turnstile or violating a mere municipal ordinance was arrested and taken to jail.  No more “desk tickets” which would require you to appear later.  Inaugurated under Police Chief William Bratton, his Deputy Commissioner Jack Maple described it thus: ‘“Broken Windows’ was merely an extension of what we used to call the ‘Breaking Balls’ theory.”  That is, the notion that by suppressing minor crimes, like breaking windows, you prevent major ones.  But as Maple later came around to tell it, “Rapists and killers don’t head for another town when they see graffiti is disappearing from the subway.  The average squeegee man doesn’t start accepting contract murders whenever he detects a growing tolerance for squeegeeing.  Panhandling doesn’t turn a neighborhood into Murder Central.”  To date, Broken Windows as a means of reducing crime has no serious empirical study to back it up.  Under Giuliani, “the city police became a wildly hyperactive machine for mass arrests out of all proportion with public need,” writes Mr. Waquant.  Yet even as misdemeanor arrests surged, the felony indictment and conviction rate dropped steadily after 1992, suggesting that these arrests were based on weak or false evidence that could not be sustained in court.

Jeh Johnson Joins NYC Officials For Active Shooter Drill In Manhattan

NYPD Chief William Bratton (Michael Graae/ Getty Images)

2. Stop and Frisk, as a component of Broken Windows, was not rolled out en masse: it was highly targeted against people who were black or brown living in specific areas and who, in the vast majority, had not committed any crime.

This fact alone makes it clear that this was not a policy of zero tolerance but rather one of selective intolerance for those committing certain crimes, – arrests that score high with mostly white, bourgeois constituents because they are seen as a public nuisance – and the policy targeted specific areas, low income communities where the police may find people who already had outstanding warrants.  The generic Stop and Frisk involves an armed man or woman commanding you to spread your legs, assume a submissive position and submit to being groped in front of your neighbors.  According to a federal district court judge in New York and to statistical experts who combed through millions of police records, over 80 percent of police stops were of Black and Hispanic people though they account for just half the city’s population.  Is that because black and brown men disproportionately commit crimes?  “This might be a valid comparison if the people stopped were criminals,” wrote Judge Shira A. Scheindlin in a 2008 ruling that found the policy was applied in an unconstitutional manner.  “To the contrary, nearly 90 percent of the people stopped are released without the officer finding any basis for a summons or arrest.”  She also found that these groups “were more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband.”  Stop and Frisk massively misdirected police energy and resources into seizing people who had not committed any crime.  By that account alone, it was grossly ineffective.

3. Crime in NYC began to fall significantly before Mayor Giuliani took office and prior to the implementation of Broken Windows policing.

Rudolph Giuliani took office in 1994.  During the last two years of his predecessor’s term in office, under Mayor David Dinkins, prior to Giuliani’s election, the homicide rate fell by 4 percent and then by 7 percent.  After a surge between 1985 and 1990 due mainly to crack cocaine, gun-related murders fell.  Aggravated assault began to fall in 1988, burglary in 1980, vehicle theft in 1990.  Property crimes declined for 14 years, from 1988 to 2002.  Imagining a graph, none of these trend-lines move based on the implementation of Broken Windows.  Actually, Broken Windows had already failed once before.  From 1984-1987, Mayor David Dinkins implemented “Operation Pressure Point.”  During this zero tolerance campaign there was a sharp increase in violent crime also related to a booming drug trade.  Once the drug trade stabilized and subsided, crime fell.  In other words, Broken Windows tried and failed, then, with crime already falling, it was rolled out with great fanfare and a new guise of academic security-think.    

In fact, as Mr. Waquant shows, during the 1990s, crime fell everywhere including in places that did not implement Broken Windows policing.  This includes cities such as Boston, San Francisco and San Diego, which largely maintained “community policing” and, in San Francisco, experimented with juvenile diversion programs.  In that city, from 1995-1999 violent crime reduced by 33 percent (compared to just 26 percent in NYC) and jail admissions halved.

4. Five other factors that explain the drop in crime.

Mr. Waquant lists five factors, (see his work for more detail), but briefly: (1) Though uneven and shallow in key respects, unprecedented economic growth during the 1990s provided jobs, encouraged youth to seek secondary schooling and took many young people off the streets.  (2) Stabilization and reduction in the crack cocaine economy: By the end of the 1990s, new dealers ceased to rapidly enter the market and kill each other over territory, the system of sellers stabilized and drug-related homicides plummeted.  Additionally, the taste for crack cocaine ceded to other drugs, including marijuana, heroin and methamphetamines which, at that time, were more frequently sold among acquaintances instead of on street corners.  (3) The number of young people shrunk significantly and this is the group most likely to commit crime.  Here, one cannot discount the tens of thousands who would have been ensnared in the criminal justice system but who died from drug overdoses, the AIDS pandemic among heroin users, gang wars or were deported.  (4) The “generational learning effect: a cohort born after 1975-1980 drew away from the hard drugs and violent lifestyle associated with uncontrolled addiction, imprisonment for life and violent death.  Witness the “peace treaties” signed among various gangs in L.A., Chicago, Detroit and Boston in the early 1990s.  And also the many community Black and Latino grass roots organizations that arose with a focus on saving their children.  (5) Crime in the 1990s was abnormally high by historical standards: This meant that it was likely to return to its median levels.  After the surge in the 80s and 90s, the homicide rate, for example, came back down to the national average where it had been a generation before.  All of these factors contributed to a drop in crime.

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Punishing the Poor, by Loic Waquant (Duke Univ. Press 2009)

5. Broken Windows was part of a national trend among politicians who sought to “morally correct” welfare recipients and law breakers.

Moralizing about the need to eliminate a so-called culture of “welfare dependency,” politicians gutted benefits and hinged the receipt of federal aid on the acceptance of low-wage, precarious labor, mostly for women of color.  Meanwhile, writes Mr. Waquant, “a veritable Marshall Plan” was provided for imprisonment, largely aimed at men of color.  Washington redirected funding so that money for incarceration doubled the sums allocated to either Aid For Dependent Children (AFDC) and Food Stamps ($54 billion compared to $20 billion and $27 billion, respectively).  In the 1990s alone, Washington cut funding for public housing by $17 billion and boosted corrections by $19 billion, an increase of 171 percent, “effectively making prisons the main housing program for the poor.”  Consider the social profile of who is jail: by the mid 1990s, less than half of jail inmates held a full time job at the time of arraignment, two-thirds came from households with an annual income less than half the “poverty line,” 60 percent did not grow up with both parents, 14 percent grew up in foster homes, 13 percent had no post-secondary schooling, and every other inmate had a family member in jail.  According to an article in the New England Journal of Medicine, in 2011 roughly half had a psychiatric disorder.

Trump’s yearning for Stop and Frisk and “Law and Order” envisions a tax free, laissez-faire world for those at the top of society and an authoritarian prison regime for those at the bottom who do not dutifully accept low-wage labor, insecure housing, and regular incarceration as a way of life.  

“Roxbury Strong”: young actors kill it, deliver history, inspiration.

Roxbury Train photo

“Roxbury Strong,” Directed by Ron Jones, at Hiberian Hall, 184 Dudley St, Boston, MA 02119, Next showing: Saturday, August 20, at 2:30 pm and 7:30 pm (1 hour). Free admission.

Punctuated with beats by De La Soul and Slick Rick, and replete with an onstage D.J., the high school-aged performers of “Roxbury  Strong” delivered a history lesson of their city’s sometimes besieged but unbowed residents.

The stage is set up as multi-leveled platforms from which the actors delivered first person monologues in the character of a historic Roxbury persona, each representing a particular point in time. The name and photograph of each historic figure showed on a large screen behind them: Mike of Mike’s Donuts, Tariq Russell – a home health worker who has been shot 9 times, and police chief William Gross, to name a few.

“Roxbury is so unique,” said director Ron Jones after the play, “they tried to put a highway through here [Route 95] in the 1960s, but [the residents] stopped it. If that had happened this place would now be mostly warehouses.” Jones combined extensive reading and local interviews to produce the show.

The spiritual voice of the show is played by High School Senior and drama major Shaynia Jean, who depicts a world weary shop owner that employs a young upstart to go collect local stories. So employed, the young boy intermittently synthesizes his learning into raps which he delivers center stage. Performed by a small cast, some young actors seamlessly embodied totally distinct characters such that one was surprised upon the realization that he or she had just played a different character.

By 1960, Roxbury had only 62,000 black residents, meaning it was not a Great Migration city, but by 1970 that number had nearly doubled, one character explained. Nevertheless, the city maintained traces of diversity, another character intoned, as old photos showed behind him. Little black girls played with little German girls who’s mother had married a black Servicemember. The city’s geographical space was later halved, in part to make way for the South End’s redevelopment, and a huge swath south of Melnea Cass Boulevard was abandoned.

Another veteran Civil Rights activist detailed an episode in which residents dredged an entire neighborhood of trash, heaped it and informed the city they were going to light it on fire. Photos from that time flashed on the screen. But when the police and fire department came, “they turned the hoses on us.” Still, it was shown on national television and helped turn public sympathy.

One slogan from the movement to protect black children during Forced Busing showed how slow progress was in coming: Little Rock 1957, Selma 1963, Boston 1974. Another resident-activist, played by a convincing high-schooler, told of how she and others covered dead cars with Mayor Ray Flynn stickers, and how happy the Mayor’s office was to give out the stickers, until their point finally came across.

Other touch stones emerge: the Charles Stuart case, the crack era and gentrification.

“Gentrification didn’t just happen over night,” the audience is told, “it began 10 to 15 years ago at meetings we didn’t go to… If you don’t have some sort of subsidized housing, pretty soon you won’t be able to live here.”

As for policing, one could juxtapose the St. Clare Commission produced by officials in the wake of the mass round up of black men following the Charles Stuart case with the ACLU’s recent “Black, Brown and Targeted” detailing Stop and Frisk.

But ultimately it is hope that comes through in the scripted lines, the youngsters obvious talent, and their sense of history and future promise. One Roxbury nonprofit-leader depicted in the show asked, “Change isn’t bad, but how do I prejudice change in my favor?”

“The fight doesn’t end,” said another, “it just evolves.”

Ta-Nehisi Coates’s painful, urgent lessons to his son

Coates

The long struggle, the weight of Many Thousands Gone, a deeply felt link to one’s people, – all of this Coates wants, urgently wants to instill through an extended letter to his impressionable young son in his latest book ‘Between The World And Me.’  Coates’s son Samori began crying one night when it was announced on TV that the killer of Michael Brown in Ferguson would not face charges.  Coates had no answers or proper consolation. This book followed.

“How do I live free in this black body?,” is Coates’s entry point for exploration of his upbringing and formative intellectual years, through college and into post-graduate life, as told to his son.  Coates grew up hard in Baltimore, constantly reminded of the fragility of his body, seeing in one preadolescent boy, “in his small eyes…a surging rage that could, in an instant, erase my body.  That was 1986.”

Writes Coates: “To be black in Baltimore of my youth was to be naked before the elements of the world, before all the guns, fists, knives, crack, rape, and disease.  The nakedness is not an error, nor pathology.  The nakedness is the correct and intended result of policy, the predictable upshot of people forced for centuries to live under fear.  The law did not protect us.  And now, in your time, the law has become an excuse for stopping and frisking you, which is to say, for furthering the assault on your body.  But a society that protects some people through a safety net of schools, government-backed home loans, and ancestral wealth but can only protect you with the club of criminal justice has either failed at enforcing its good intentions or has succeeded at something much darker.”

Fear overshadowed and united Coates’s family and caused a desperate and fierce sense of love conveyed to him by his elders.  “My father was so very afraid. I felt it in the sting of his black leather belt, which he applied with more anxiety than anger, my father who beat me as if someone might steal me away, because that is exactly what was happening all around us.”

One recalls James Baldwin’s short story, ‘Sonny’s Blues,’ which describes a 1950s Harlem projects living room: “The darkness outside is what the old folks have been talking about…The child knows they won’t talk anymore because if he knows too much about what’s happened to them, he’ll know too much too soon, about what’s going to happen to him.”

As a child Coates saw dispatches on TV from this “other world apart,” of White homes, and easygoing friends. As a young parent he brought his son to a suburb of New York and saw a spoiled white child riding his tricycle, taking up the sidewalk as his mother stood by in yoga pants and stroller, and he realized that this child had been taught that the world belonged to him, while he had taught his child fear.

The opening passages which describe Baltimore are sharp, and one wishes for more explanation, for more of Coates’s brilliant social and historical illumination in addition to his description.  Gangs proved the inviolability of their bodies through the ability to crack ribs, arms and legs.  Schools as education rendered as route discipline, concerned not with curiosity but with compliance.

“The fearless boys and girls who would knuckle up, call on cousins and crews, and, if it came to it, pull guns seemed to have mastered the streets. But their knowledge peaked at seventeen, when they ventured out of their parents’ homes and discovered that America had guns and cousins, too. I same their futures in the tired faces of mothers dragging themselves onto the 28 bus, swatting and cursing at three-year-olds; I saw their futures in the men out on the corner yelling obscenely at some young girl because she would not smile.  Some of them stood outside liquor stores waiting on a few dollars for a bottle.  We would hand them a twenty and tell them to keep the change.  They would dash inside and return with Red Bull, Mad Dog, or Cisco.  Then we would walk to the house of someone whose mother worked nights, play ‘Fuck The Police,’ and drink to our youth.  We could not get out.”

Coates rejected religion early on, and he was put off by the way school presented the Civil Rights Movement, which he was shown as “a series of films dedicated to the glories of being beaten on camera.”  Coates eschews the American narrative of progress, which President Obama often extolls, where each generation moves closer to justice through universal enlightenment.  Instead, Coates sees the moves toward justice as hard fought radical breaks with the American ideal, not a realization of it.  Blaming the oppressed, “a great number of educators spoke of ‘personal responsibility’ in a country authored and sustained by criminal irresponsibility.  The point of this language of ‘intention’ and ‘personal responsibility’ is broad exoneration.  Mistakes were made.  Bodies were broken.  People were enslaved.  We meant well.  We tried our best. ‘Good intentions’ is a hall pass through history, a sleeping pill that ensures the Dream.”

The middle section of the book is an homage to “The Mecca,” that is, Howard University, the historically black college in Washington D.C., and Coates pays tribute to the school, its people and his formation of a political consciousness and meditations on race:

‘“White America’ is a syndicate arrayed to protect its exclusive power to dominate and control our bodies.  Sometimes this power is direct (lynching), and sometimes it is insidious (redlining).  But however it appears, the power of domination and exclusion is central to the belief in being white, and without it ‘white people’ would cease to exist for want of reasons.  There will surely always be people with straight hair and blue eyes, as there have been for all history.  But some of these same straight-haired people with blue eyes have been ‘black,’ and this points to the great difference between their world and ours.  We did not choose our fences.  They were imposed on us by Virginia planters obsessed with enslaving as many Americans as possible.  They are the ones who came up with the one-drop rule that separated ‘white’ from ‘black,’ even if it meant that their own blue-eyed sons would live under the lash.  The result is a people, black people, who embody all physical varieties and whose life stories mirror their physical range.  Through The Mecca I saw that we were, in our own segregated body politic, cosmopolitans. The black diaspora was not just our own world but, in so many ways, the Western world itself.”

To novelist Saul Bellow’s quip “who is the Tolstoy of the Zulus?,” Coates, through his reading, found a reply from Robert Wiley, “Tolstoy is the Tolstoy of the Zulus,” wrote Wiley. “Unless you find a profit in fencing off universal properties of mankind into exclusive tribal ownership.”

The reader feels a sense of desperation or longing in Coates’s voice.  Perhaps he realizes that his son is going to have to experience all of these things, this intellectual realization and coming to consciousness, for himself, yet he wants to try and instill it in his son anyway, ahead of time.  He wants to give his son Samori a small manifesto to remember where he came from, that he belongs to a people “born out of mass rape.”  Coates humanizes this abstraction in one of his most poignant passages:

“I have raised you to respect every human being as singular, and you must extend that same respect into the past.  Slavery is not an indefinable mass of flesh.  It is a particular, specific enslaved woman, whose mind is as active as your own, whose range of feeling is as vast as your own; who prefers the way the light falls in one particular spot in the woods, who enjoys fishing where the water eddies in a nearby stream, who loves her mother in her complicated way, thinks her sister talks too loud, has a favorite cousin, a favorite season, who excels at dressmaking and knows, inside herself, that she is as intelligent and capable as anyone.  ‘Slavery’ is this same woman born in a world that loudly proclaims its love of freedom and inscribes this love in its essential texts, a world in which these same professors hold this woman a slave, hold her mother a slave, her father a slave, her daughter a slave, and when this woman peers back into the generations all she sees is the enslaved.  She can hope for more.  She can imagine some future for her grandchildren.  But when she dies, the world – which is really the only world she can ever know – ends.  For this woman, enslavement is not a parable.  It is damnation.  It is the never-ending night.  And the length of that night is most of our history.  Never forget that we were enslaved in this country longer than we have been free.  Never forget that for 250 years black people were born into chains – whole generations followed by more generations who knew nothing but chains.”

The rest of the book revolves loosely around a formative event: the murder by the Prince George’s County Police in Maryland of the promising young black scholar, Prince Carmen Jones, of Howard University.  This marred Coates and solidified his views.  “My understanding of the universe was physical, and its moral arc bent toward chaos then concluded in a box.”

In this book there is no policy solution, no prescription and no answers, as comes out so clearly in Coates’s essays and articles.  He is trying to provide these lessons to his relatively privileged son while simultaneously protecting him from it, and one senses that anxiety and tension.  He is ashamed for teaching Samori caution instead of ownership, as with that young boy on the tricycle, but he wants him to understand why he chose this path.  To Samori this slim, 150-page book must weigh about a ton.  For the reader, one may read this book and feel depressed, or one may feel angry, and anger can be a good start.

For Tsarnaev, neither death nor solitary perfect justice

Telegraph Tsarnaev

(Photo – telegraph.co.uk)

U.S. Attorney Carmen Ortiz’s got it wrong when she suggested that, in the wake of sentencing, our thoughts will turn away from the Tsarnarev’s forever. Nor is the moral debate settled in favor of the death penalty, as she suggested. The question of a just punishment persists. For now, Dzhokhar Tsarnaev will live on in solitary confinement. Decades of research show that this often dislodges the personality and reduces a person to uncomprehending stupefaction. At worst, the isolated person floods his cell, self mutilates and eats his own feces. He becomes less than human. The American prison was once conceived as a reformatory where a person would be forced to sit in quiet contemplation, face to face and naked before his crime. For Tsarnaev, 19 at the time, this would mean grasping the enormity of his horror. Reduced to something less than human, this will not come to pass. The “death qualified” jury felt the state’s most severe retribution appropriate. The desire for revenge is understandable and often justified. But if neither a swift death nor a sustained destruction of the mind is ideal, our anger ought to be redirected toward developing a new form of justice.

Fed. Defenders Deserve Highest Praise In Marathon Case

The New York Times’ recent coverage of the Dzhokhar Tsarneav trial went a little off the rails the week before last. Zachary Lown submitted a letter to the editor in response which did not make it to print but is provided here:

The federal defenders representing Marathon Bombing suspect Dzhokhar Tsarnaev deserve our utmost praise, not opprobrium. They are not defending his right to commit the horrific crimes of which he is accused, they are defending a system based on constitutional rule and a fair process. Zealous advocacy is not only justified by the right to a defense; having fierce legal adversaries on either side is believed to be the best way to get to the truth. Yet the Time’s otherwise stellar legal reporting almost paints Tsarnaev’s lawyers as villains (Marathon Bombing Suspect Waits in Isolation, April 14). They are described as filing “repeated demands” for prosecutor’s files and obsessing over “legal minutiae.” But access to information is vital and court battles are often waged on procedural grounds. In other words, they’re doing their job. Public defenders accept paltry wages to do the crucial work of standing between an ordinary citizen and the state. The extreme nature of this case shouldn’t blind us to this fact: we need them to uphold our ideals and make the system work.

Mass. High Court: Prosecutor’s Words May Be Used Against Him

fineartamerica.com

fineartamerica.com

In a case decided this past January, the Supreme Judicial Court (SJC) held that a prosecutor’s closing statements may be read to a jury if the prosecutor later changes his argument.

That case, Commonwealth v. Kevin Keo, involved the murder of Christian Martinez who was shot and killed outside of a restaurant in Lynn back in November 2007. Mr. Keo was charged with the killing, but no one actually saw who fired the bullet. The prosecutor had earlier argued at the trial of Keo’s codefendant that the codefendant, not Keo, was the triggerman. The jury apparently didn’t buy it and convicted the codefendant only of second degree murder under a theory that he was a joint venturer, not the shooter.

With that in mind, six months later the very same prosecutor switched tracks and argued at Keo’s trial that Keo was most definitely the shooter. “That’s what all the evidence shows,” he said, “[i]t couldn’t have been [the codefendant].”  Mr. Keo was ultimately convicted, and he appealed.

The SJC issued a 4-3 decision, written by outgoing Chief Justice Ireland, upholding the conviction. The majority rejected Mr. Keo’s claim that the prosecutor violated his Due Process rights to a fair trial by allowing the prosecutor to pursue two factually inconsistent theories. A prosecutor may switch tracks so long as the “core” of his case remains the same and he does not manipulate evidence or act in bad faith. In both Case 1 and Case 2, the prosecutor told the jury that it didn’t have to identify the triggerman but rather could convict if it found that the defendant participated in the crime with the intent to kill. This was done according to the “Zanetti rule” (jury may convict if it finds that defendant participated in the murder, alone or with others, with the intent to kill).

A closer call was whether or not defense counsel at Keo’s trial was ineffective for failing to seek admission of the prosecutor’s prior argument under a rule which allows for admission of out-of-court statements made by a “party opponent.” Defense counsel could have then quoted the prosecutor as saying that Keo was not the shooter. The majority found that counsel was not ineffective because the court had never squarely decided that prior closing arguments would be admissible in this type of situation. But even if it was, it would not have been admitted at Keo’s trial because the prosecutor’s two arguments were not inconsistent “as a matter of law.” Even though the prosecutor argued factually inconsistent theories, the prosecutor also reminded the jury that it didn’t have to positively ID the shooter and could convict under Zanetti principles. And even if the prior arguments had been admitted, it was not likely to have influenced the jury.

This engendered more than a little bit of head scratching from the dissent, led by Justice Gants, which pointed out that the prosecution’s case would have been “immeasurably more difficult to prove” if the jury was told that the government had previously argued that Mr. Keo was not the shooter. Moreover, if the codefendant was the real killer, as the defense argued, then to get a conviction the prosecution would have to go an additional step and prove that Keo had planned it that way, or that he instructed his codefendant to fire the shot. But evidence suggested that Keo was not within range of the victim and was not near his codefendant at the time the victim was killed.

To return to the headline of this post, – the upside is that the majority squarely overruled Commonwealth v. Arsenault which held that prior closing arguments were not admissible. It also sounded a cautionary note:

[P]rosecutors, in future cases, should proceed with caution when asserting inconsistent arguments in different trials involving the same crime, assuming no ‘innocent explanation,’ significant changes, or new evidence have come to light. We note that, particularly after Commonwealth v. Zanetti, supra, there is no need for a prosecutor to emphasize principal liability. If a prosecutor does so and the position is inconsistent with what he formerly argued at another trial for the same crime, he does so possibly at his own peril.

NY Limits Solitary Confinement – Mass Should Follow Suit

Boston Globe

MCI-Cedar Junction – Boston Globe

The state of New York has agreed to limit the use of solitary confinement for juveniles and the disabled, and will add durational limits and issue new guidelines to curtail the use of forced isolation. As we wrote in an earlier post, according to a recent court filing by the ACLU in Massachusetts: 

decades of scientific research, have documented instances where isolated prisoners “become so desperate for relief that they . . . set their mattresses afire . . . burst out in a frenzied rage of aimless destruction, tearing their sinks and toilets from the walls, ripping their clothing and bedding, and destroying their few personal possessions in order to alleviate the numbing sense of deadness or non-being and to escape the torture of their own thoughts and despair.” A 2007 Massachusetts lawsuit documented numerous instances of suicide and self-mutilation among inmates held in segregated housing. The practice has been banned by most nations and is condemned by the United Nations Committee Against Torture. A spate of recent states have revised and significantly reduced its use and the Justice Department is currently reviewing its application in federal prisons.

As the result of the federal law suit in New York, a host of other reforms will also be instituted, including the appointment of an assistant commissioner and a research expert to monitor and oversee the implementation of disciplinary practices. New York is the largest prison system in the United States to take these steps towards progress.

Massachusetts would do well to follow suit, particularly in light of the overuse and abuse in imposing solitary confinement and its well documented link to increased prison violence. Prisoners in Massachusetts can be sentenced for up to ten years in solitary confinement as the result of a hearing process which is lacking of basic procedural safeguards. I personally worked with and got to know a Massachusetts prisoner who spent 8 years in solitary confinement on dubious evidence connecting him to prison violence. He was finally released after psychiatrists at the Bridgewater State Hospital concluded that his personality and psychological well being would be totally destroyed were he to complete his 10 year term.

Here in Massachusetts we ought to look at the reforms being instituted in places such as New York and in several traditionally conservative southern states and we should get in the lead instead of lagging behind when it comes to smart prison policy.

A Brief Success In The Struggle Against Capital Punishment

Book Review: A Wild Justice, by Evan Mandery, W.W. Norton & Company (NY 2013), 534 pp.

A Wild Justice

“A Wild Justice” by Evan Mandery chronicles the rise and fall of the anti-death penalty litigation campaign which culminated in the abolishment of capital punishment by the Supreme Court in 1972. It was reinstated just four years later in 1976. The book, which covers these four years, recounts the heroic efforts of the NAACP’s Legal Defense Fund (LDF), which led the campaign, it goes inside the Supreme Court conference rooms to detail the thought process of the Nine as they debated the pros and cons of the death penalty, it pauses to provide brief biographical sketches of the Justices, and it recreates the best moments of oral argument and written opinion elucidating the heart of the issue. The book serves as an excellent overview to the tortured history of death penalty jurisprudence.

I find some faults with this book, which I’ll mention.  Its greatest strength, however, is its appraisal of LDF’s strategy decisions. Because this blog focuses on radical lawyering, I want to recap some of LDF’s substantive arguments against the death penalty.  It’s the only way to really capture the genius of these abolitionists.  It may also be worth recreating for a generation of activists who may not be aware of this particular history. What follows is our longish post.

LDF’s strategy began in the late 1960s when the group attempted to “pour sand into the gears” of the system by bringing all executions to a halt through numerous, simultaneous appeals. LDF succeeded at creating a de facto moratorium and with over 600 executions on hold, the Supreme Court knew that if it reaffirmed the death penalty there would be an ensuing blood bath. The stage was set for a monumental case.

electric chair

That case was Furman v. Georgia in 1972. At issue was whether the death penalty amounted to “cruel and unusual punishment,” which was forbidden by the Eighth Amendment. The argument of LDF, and its brightest star Tony Amsterdam (another major focus of the book), was that, in line with an earlier Supreme Court decision, cruel and unusual punishment had to be gauged in terms of “evolving standards of decency that mark the progress of a maturing society.” Capital punishment supporters, on the other hand, urged that cruel and unusual punishment was defined according to the original intent of the Constitution’s authors. Amsterdam addressed this proposition: “If the Constitution does not forbid capital punishment today upon the theory that it was widely allowed by law and practice in 1791, the Eighth Amendment also does not forbid today – and will never forbid – the stocks and the pillory, public flogging, lashing and whipping on the bare body, branding of cheeks and forehead with a hot iron, and the stilting, cropping, nailing and cutting off of ears. Further discussion of a static theory of the Eighth Amendment seems unnecessary.”

How then could one conclude that the death penalty was out of line with “evolving standards of decency” in 1972 given that most states allowed it? Tony Amsterdam’s genius was to argue that the public supported the threat of capital punishment but not its imposition. The death penalty was rarely enforced, it was applied to the ugliest defendants, and it was hidden from public view. Widespread executions would cause revulsion, Amsterdam argued. He did not discard the fact that forty-one states had it on their statutes. “But one must ask, ‘What do they do with it?’” Amsterdam pointed out that at every step of the way prosecutors exercised discretion and juries chose not to impose the death penalty, even when they had a death eligible defendant. “We hide our executions because we are disgusted to look at them, because the view of them would make men sick,” Amsterdam wrote. “Could the Court today sustain a public execution as consistent with the Eighth Amendment?” In other words, the rare application of the death penalty “objectively” showed that it was out of line with evolving standards of decency.

Moreover, according to Amsterdam the judiciary had to step in. Judges are always reluctant to rewrite the law. But the judiciary could not take a wait-and-see approach. The death penalty had to be gauged according to contemporary societal mores. It was not sufficient to gauge “evolving standards of decency” by asking whether States let a certain punishment fall out of fashion. Under that approach, the Eighth Amendment would be a dead letter; it would cease to be a constitutional protection for individuals presently facing punishment. Additionally, because the death penalty was inflicted against people who are overwhelmingly poor, minorities and socially ugly, “it escapes all other constitutional controls and escapes the public pressures to keep legislatures acting decently,” said Amsterdam. Absent a judicial role, the Eighth Amendment was essentially meaningless.

Constitution

VICTORY

LDF carried the day and in 1972 the Supreme Court abolished capital punishment. What resulted with Furman v. Georgia, however, was a 5-4 majority in favor of overturning the death penalty and five different rationales for doing so. Mandery captures the high points of the majority decisions. Justice William Brennan focused on the issue of human dignity:

Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose ‘the right to have rights.’ A prisoner remains a member of the human family. Moreover, he retains the right of access to the courts. His punishment is not irrevocable . . . . As one 19th century proponent of punishing criminals by death declared, ‘When a man is hung, there is an end of our relations with him. His execution is a way of saying, ‘You are not fit for this world, take your chance elsewhere.’

Justice Douglas focused almost exclusively on the discriminatory application of the death penalty and asserted that America had created a caste system. Justice Thurgood Marshall emphasized the illegitimacy of retribution as a sentencing purpose. Despite these powerful statements, the fact that there was no one unifying opinion set the stage for Furman’s eventual undoing.

BACKLASH

One of the strongest and most cogent sections of the book is Mandery’s attempt to deal with the backlash that followed Furman. That backlash was driven by the court’s loss of legitimacy in the wake of forced busing and Roe v. Wade. It was augmented by President Nixon’s “Southern Strategy” which split economically liberal southerners from the Democratic party through appeals to social fears such as rising crime and integration. This was the era of urban riots and a nationally accelerating murder rate. In Furman’s wake, every state that previously retained the death penalty wrote new statutes which they believed would be upheld in face of the now inevitable Supreme Court reversal.

The state responses should appear familiar because they form the basis for every death statute now in existence. The States correctly predicted that the general proposition that death can never be a punishment would not stand up over time and so they focused their efforts on those decisions which criticized the death penalty as inconsistently enforced and unfairly applied. One response was to make a death sentence mandatory for certain crimes. (These laws were later struck down). The enduring response focused on making the process more fair. This involved bifurcated trials, with a guilt phase and a punishment phase, and the utilization of written standards for juries who were instructed to weigh certain factors in determining death.

By this point the ground had shifted beneath LDF but, according to Mandery, LDF lost sight of reality. By the time the next landmark death cases were heard again in 1976, known collectively as Gregg v. Georgia, the death penalty had proven to be a widely popular institution. Support for capital punishment surged in the wake of Furman. In just four years prosecutors and juries had sentenced 253 people to die – though these sentences were presumably on hold. This historical development calls into question the ability of lawyers to make social change through strategic litigation. Mandery suggests that no real gains can be had if the Court outpaces public opinion. He calls this part of the book “Hollow Hope.”

In this context LDF could have focused on the flaws of the particular statutes under examination by the Court in 1976. For example, in a prior case Justice Harlan had questioned the ability of legislators to write a balance sheet for juries to weigh mitigating factors (such as the mental incapacity of the defendant) against aggravating factors (such as the helplessness of the victim) in meting out death sentences. According to Justice Harlan, mercy was an act of grace that couldn’t be codified. Nonetheless, LDF refused to get in the game of tinkering with the machinery of death. LDF argued that death could never be a punishment in any circumstance. At one point  Justice Powell asked Amsterdam, who is Jewish, whether the death penalty was appropriate “for the commandant of Buchenwald.” When a flustered and offended Amsterdam answered “no,” Justice Powell stared in disbelief.

LDF was also in a bind over its arguments concerning selective enforcement of the death penalty. LDF argued that prosecutorial discretion and jury discretion did not provide safeguards. Instead it resulted in the discriminatory application of death sentences to the weakest defendants. But if the problem was that the death penalty targeted the poor and minorities because of prosecutor and jury bias, then the same could be said in every other criminal case. If this type of discretion did not result in a fair process in a capital case then it produced unfair results in a run of the mill drug case or armed robbery. The Justices were not prepared to grapple with this possibility. The result of Gregg v. Georgia in 1976 was 7-2 in favor of reinstating capital punishment.

deathpenalty.org

deathpenalty.org

BAD EDITING, BUT A GOOD READ

This book’s greatest downfall is that it should probably have trimmed at least 100 pages from its almost 500 page total (kind of like this review). Mandery doesn’t really hit his stride until about a quarter of the way in when he begins to really focus more on the substantive legal issues and recreates the now legendary oral arguments. Prior to that, the reader gets an institutional history of LDF, including what kind of office chairs they used, and stilted attempts at setting the scene by walking us through what a certain Justices had for breakfast, his early morning stroll and then scenic drive to the Court prior to deciding an important matter. And there are a lot of brief detours to explain the background of a particular academic or intellectual who only shows up for a few pages and is quickly forgotten. On the other hand, faulting a book about the Supreme Court for being slow is kind of like watching golf on T.V. and complaining about the lack of action. The real problem is the editors who didn’t bother to cut non-essential material or correct the littering of spelling and grammatical errors.

It is also too bad that the book ends on such a depressing note. It even concludes with an “all that could have been” type of prologue positing a series of what-if questions. Perhaps the crusaders involved in this struggle look back in frustration. The present generation of abolitionists, however, can see this history as having laid the groundwork. To that end, this conclusion ignores the resurrection of the abolitionist movement, the fact that support for the death penalty has dropped over the past decade and that 9 more states have since abolished the death penalty (thirty-two states have it, eighteen do not). Overall, it’s a good read and a great resource.

A Minor Check on Solitary Confinement

April 4, 2013

Souza Baranowski Super Max Prison

Souza Baranowski Super Max Prison

Edmund LaChance was placed in the “Special Management Unit” (SMU) at the Souza-Barranowski Correctional Center after throwing a cup of pudding at another inmate in December of 2005.  For more than ten months, LaChance was held in the SMU in isolation and forced idleness.  He was placed in a small cell with a toilet and white walls, allowed one hour of recreation in an outdoor, unsheltered cage, two no-contact visits lasting no more than one hour and was shackled hand and foot and accompanied by a two guard escort while outside of his cell. He was never informed as to the duration of his confinement. Instead, he received periodic letters stating various reasons as to why he was on “awaiting action status.”

The destruction which solitary confinement works upon the human personality and its link to increased prison violence is now well-known. In the recent case of LaChance v. Commissioner of Correction the Supreme Judicial Court handed a mild victory to those seeking to scale back its use in Massachusetts.

Decided last November, LaChance found that the Department of Correction must provide persons held in solitary confinement, as a matter of due process, a hearing and written decision stating the basis for such confinement at least once every 90 days. Edmund LaChance’s lawsuit argued that his indefinite confinement violated the state and federal constitutions and the DOC’s own regulations. Prison authorities had already set out rules providing hearing rights to prisoners held in “disciplinary segregation.” Because LaChance was held in “administrative segregation,” they argued, these rules didn’t apply. The SJC rejected that argument holding that the “Special Management Unit” is solitary confinement by any other name. Under Supreme Court precedent, those held in “extreme isolation” were entitled to procedural safeguards.

solitarywatch.org

solitarywatch.org

The remaining question, and perhaps the most significant one, was whether officials who placed him in the SMU could escape money damages on qualified immunity grounds. Ten years prior, the Massachusetts high court had held in Haverty v. Commissioner of Correction that due process protections apply when officials “segregat[e] . . . a prisoner in near solitary confinement, for no specified period[.]” Nonetheless, the court had never decided how long a prison could hold an inmate in the administrative loophole of “awaiting action status” without a hearing. Writing for the court, Justice Duffly drew the limit at 90 days. Because this was apparently a new rule the prison officials did not violate clearly established law and were therefore not personally liable.

Unfortunately, this decision continues the glacial pace toward civilizing prison conditions. As noted by the ACLU’s amicus brief in LaChance, decades of scientific research have documented instances where isolated prisoners “become so desperate for relief that they . . . set their mattresses afire . . . burst out in a frenzied rage of aimless destruction, tearing their sinks and toilets from the walls, ripping their clothing and bedding, and destroying their few personal possessions in order to alleviate the numbing sense of deadness or non-being and to escape the torture of their own thoughts and despair.” A 2007 Massachusetts lawsuit documented numerous instances of suicide and self-mutilation among inmates held in segregated housing. The practice has been banned by most nations and is condemned by the United Nations Committee Against Torture. A spate of recent states have revised and significantly reduced its use and the Justice Department is currently reviewing its application in federal prisons.

Edmund LaChance prevailed on the merits of his case but one has to wonder how much solace he takes in the SJC decision to allow authorities to check-off an inmate’s confinement once every 90 days. Even though the illegality of solitary was not squarely before the court, the Justices could have acknowledged the emerging consensus on what Charles Dickens once called “this slow and daily tampering with the mysteries of the brain[.]”

(This article first appeared on MassAppeals.org.)

High Court’s Ban On Juvenile Life Sentences Must Apply To Old Cases

The recent Supreme Court decision of Miller v. Alabama struck down mandatory life-without-parole sentences for juveniles who participate in murder. As a result, the Massachusetts murder statutes are no longer valid for children. The next question: what happens to the nearly 80 defendants in Massachusetts prisons convicted and sentenced as juveniles under the illegal laws?

The Massachusetts Legislature may propose a solution in the next couple of months. Whatever bill becomes law, it will likely commute the sentences of the Miller kids to something less than natural life.

But if the Legislature fails to act then the fate of these kids will be left to local courts. The big issue for the judiciary will be whether Miller is retroactive — meaning that it applies to closed cases. I think there are two reasons why it must:

First, the Supreme Court itself applied Miller retroactively to the defendant in the companion case, Kuntrell Jackson. Mr. Jackson was 14 when he was charged with felony murder (he was not the shooter).  He was later sentenced to mandatory life in prison under an Arkansas law. Critically, his conviction was finalized under state law in 2004 when his direct appeal was denied and his conviction affirmed by the Arkansas Supreme Court. In the wake of Roper v. Simmons, Jackson filed a state habeas petition in 2008 which he eventually appealed all the way up to the U.S. Supreme Court.

The Supreme Court struck down Jackson’s sentence of mandatory life imprisonment. In overturning his conviction, the Supreme Court retroactively applied its ruling in Miller to Jackson’s case. Therefore, either the rule in Miller is retroactive for all prisoners with finalized convictions or Mr. Jackson is the only person in the United States entitled to retroactive relief. (Stranger things have happened; see the PadillaChaidez saga). But, barring this, the Miller kids in Massachusetts must receive similar treatment.

Kuntrell Jackson

Kuntrell Jackson

Second, the Supreme Court has long held that a substantive change in criminal law must be applied retroactively. In contrast, when constitutional law dictates a change in criminal procedure by reworking the mechanics of trial or sentencing, that rule is not normally applied to old cases.  Miller clearly involved a substantive constitutional finding.

The rationale behind limiting retroactive application of procedural law stems from society’s interest in finality. That is because, according to Justice Frankfurter in Teague v. Lane, “[w]ithout finality the criminal law is deprived of much of its deterrent effect.” In addition, past procedural errors are apparently less reason for concern. The reach of habeas relief is not defined “simply by reference to a perceived need to assure that an individual accused of crime is afforded a trial free of constitutional error.” In contrast, substantive changes in the law receive retroactive effect because, “they necessarily carry a significant risk that a defendant . . . faces a punishment that the law cannot impose upon him.”

How do you know when a change is substantive? Substantive changes include decisions which forbid a certain type of sentence because that sentence is cruel and unusual or because the defendant doesn’t deserve it. The Supreme Court explained this in Penry v. Lynaugh, noting that substantive changes include those rules which prohibit, “a certain category of punishment for a class of defendants because of their status or offense.”

In Miller, the Supreme Court struck down a certain penalty (mandatory life-without-parole) for a specific defendant (juveniles) because of their youthful status. As such it created a substantive change in the law. A juvenile sentence of automatic life-without-parole is “a punishment that the law cannot impose.” All 80 defendants in Massachusetts must therefore get at least a new sentencing hearing under Miller.

Much is at stake in this definitional skirmish. If the Legislature fails to act then the courts may be forced to decide whether juveniles convicted of murder will ever get the chance to face the Massachusetts Parole Board. (Whether this entails a “meaningful opportunity for release,” as required by Graham v. Florida, is another story.) Despite the rationales above, several state supreme courts have already held that Miller is not retroactive.

The real question for the court, however, is far simpler: should a child be grandfathered-in to an illegal sentence?

In all of this legalizing, the ultimate message of Miller threatens to become lost. Sentencing children to die behind bars absent any consideration of mitigating circumstances is cruel and unusual. The Miller Court, relying on neuroscience, developmental psychology and “common sense . . . what any parent knows,” found that children are constitutionally different from adults. They “have diminished culpability . . . greater prospects for reform. . . [and] are less deserving of the most severe punishments.” No judge and no law can mandate throwing away the key on a child, even one who commits murder, because “incorrigibility is inconsistent with youth.”

(A version of this article first appeared on MassAppeals.org.)