Beautiful Op-Ed on BART Police Shooting

Yesterday morning at the Oakland Local: The physician who treated the latest BART police shooting victim wrote an evocative letter. Read it here in its entirety.

Last month, I learned that one of my former patients – Charles Hill – was shot and killed by BART police. Per the police, he was armed with a bottle and a knife and had menacing behavior. Per eye witnesses, he was altered and appeared to be intoxicated, but did not represent a lethal danger.


I remember Charles vividly, having taken care of him several times in the revolving door, which is the health care system for the people who do not fit neatly into society. Charles was a member of the invisible class of people in SF – mentally ill, homeless and not reliably connected to the help he needed. While I had seen him agitated before and while I can’t speak to all of his behavior, I never would have described him as threatening in such a way as to warrant the use of deadly force.


…


I would like to lend my voice to the growing protest of the BART police’s excessive use of violent force and know that weekly protests are being organized on Mondays until demands are met for BART to fully investigate the shooting of Charles Hill, disarm its police force and train them properly, as well as bringing the officer who shot him to justice.


The media is portraying the annoyance of the protests to commuters more than the unbelievable horror that an innocent man was shot dead by the force that is meant to protect us. I don’t want to upset commuters or be a nuisance. I would like to be part of educating and not letting this slip under the proverbial rug, in honor of Charles Hill and in order to help prevent something like this from ever happening again.

Legislative Effort Against the Death Penalty Revived!

The Sac Bee reports:

Opponents of the state’s death penalty announced a new effort Monday aimed at getting an initiative before voters next year that would abolish the death penalty and replace it with life without parole.


The effort uses the enormous costs of California’s death penalty as a sales point with voters, and organizers said this morning that roughly $4 billion has been spent since 1978 to execute only 13 inmates.

Usually, one would predict that such an initiative had better odds at the legislature than among the public, who has consistently supported the death penalty, and given its failure earlier this week, odds would look rather grim. But with the budget crisis what it is, the public is less likely to be held hostage by victim groups. We will be following this up closely.

SB9 Defeated in Assembly

Short by five votes, the measure to allow juveniles serving life without parole to have their sentences reviewed by a judge after fifteen years failed in the Assembly. The Huffington Post reports (complete with links):

[T]the United States is the only country that sends people under 18 to prison for life with no parole. “No other country sentences kids to die in prison,” said Yee’s chief of staff, Adam Keigwin. In California, juvenile offenders are ineligible for a death penalty sentence, but they can be sentenced to life with no parole, guaranteeing that they will die in prison. SB9 aimed to change that by offering a chance to appeal if a defendant served a minimum of 25 years and showed remorse and serious change.

The arguments against the bill were victim-centered. For various reasons we explained in an earlier post, this is political rhetoric more than realistic concern. What a disappointment, albeit not as great as the disappointment over the demise of the death penalty abolition bill. Overall, a disappointing week for Californian criminal justice.

WM3: A Personal Perspective

Even on weekend mornings, in which I could stay in bed and sleep, I wake up a bit after 5am. It’s still cold and dark, and the pool is not open yet, so there is no hurry. This evening we have dinner guests and are planning to watch Paradise Lost, a documentary about the recently released West Memphis Three. Next week I’ll be showing the same movie to my seminar students. It’s not an easy movie to watch, and for the most part what I remember from the last time I saw it are the horrifying crime scene photos, shown at the very beginning with a Metallica soundtrack. This is why I don’t buy the radical criminology paradigm wholesale, but find myself more in Jock Young’s camp of radical realism. Crime is real and victimization is real. It’s not all socially constructed. Someone did murder those kids and abuse them in horrifying ways, leaving them in the woods, their little bodies in deplorable condition. But I believe, as do many others, that that someone was not Damien Echols, nor was it Jason Baldwin or Jesse Misskelley.

I don’t remember whether I knew about the case when I was in law school in Israel. It was in the early 1990s, and Damien Echols and his supposed accomplices were arrested when I was in my second year. Echols and I are the same age. Since 1993, I graduated law school, worked criminal defense for five years, changed countries several times, finished two advanced degrees, handled health and family changes, made many new friends, and have been very blessed in a life of research, pedagogy, political action, endurance sports, and music of all kinds. Throughout this time, Damien Echols lived on Death Row in Arkansas, his skin turning translucent white from the lack of sun. He seemed almost extraterrestrial last week, giving interviews, pale as death itself and wearing dark sunglasses to protect himself–from what? The sun, the people, the abundant stimuli of which he was deprived for eighteen years?–sitting by his wife and co-defendants and quietly proclaiming his innocence, as he had done throughout his arrest, trial, and lengthy incarceration.

The documentary is rather long and includes extensive in-court footage. Seeing it years before the Alford plea that released the three defendants was like witnessing a dreadful train wreck in progress. Richard Ofshe, an expert on false confessions and memory fallacies, testifying about the many problems with Jesse Misskelley’s confession; the Arkansas prosecutor sneering at him, saying, “we’re not in Berkeley.” The “cult expert”, on the witness stand with his mail-order degree, blaming the defendants for a murder showing supposed Satanic features, as they were the only kids in town who wore black and listened to heavy metal. The complete lack of physical evidence.

Several commentators said this week that the DNA evidence “excluded” the defendants’ involvement in the crime .That’s not true, but it’s as good as true. DNA was found at the crime scene, and it does not belong to any of the defendants. It is, of course, possible that the defendants were at the scene of the crime and did not leave DNA there, but it is highly unlikely. It was a messy set for extensive, cruel carnage, and high school boys would probably not have the sophistication and know-how to avoid leaving any marks. So, the convictions rested on the confession of Misskelley, a frightened boy with low IQ, pushed and manipulated by the police, who planted details of the crime within his confession.

The big mystery, of course, is the Alford plea. It doesn’t exactly mean the defendants have pled guilty. Alford pleas allow defendants to maintain their innocence while acknowledging that there is factual basis for their convictions. Why the state offered the deal is a no-brainer. The plea explicitly rules out the possibility of a 1983 lawsuit, which would entitle the three defendants to a hefty sum in damages. Moreover, it allows the state actors to escape accountability for what appears to have been a terrible miscarriage of justice. The defendants’ decision to accept the plea makes sense when considering the alternative, but raises some serious questions. Their new hearing, complete with DNA evidence, was to be held in a few months (and might still be held.) I can only imagine the horrors of repeated miscarriages of justice would drive one to admit anything, as long as it entails a certain release from prison, and particularly death row, rather than take one’s chances on one more hearing. Nonetheless, odds seemed better than ever that the miscarriages would finally be examined and fixed. One can only imagine the set of cost-benefit considerations that went into deciding whether to agree to this plea.

So, this week my friends, my students and I will revisit a particularly dark chapter in the book of American criminal justice, and will have an opportunity to ponder upon the inevitability of human cruelty, alienation, and hatred, and the destruction it brings to lives and communities.

“This planet upon which I live is ostracized from God.” –Jacob Wassermann, Das Gold von Caxamalca

Death Penalty Bill Will Not Go Forward

SB490, the proposition to abolish the death penalty in CA, will not move forward. The Chronicle reports:

A bill that would have let California voters decide whether to repeal the death penalty will not move forward because of a lack of support in the Legislature, the measure’s author announced Thursday.


SB490 by Loni Hancock, D-Berkeley, was introduced in June following the release of a study that found the state is paying $184 million more a year to keep people on death row than it would if inmates were simply left in prison for life.

But look at the statement from Hancock:

“The votes were not there to support reforming California’s expensive and dysfunctional death penalty system,” Hancock said in a written statement Thursday. “I had hoped we would take the opportunity to save hundreds of millions of dollars that could be used to support our schools and universities, keep police on our streets and fund essential public institutions like the courts. Study after study has demonstrated that the cost of maintaining the death penalty when so many basic needs are going unmet has become an expense we can no longer afford.”

If this is not humonetarianism, I don’t know what is.

—-

Props to David Takacs for alerting me to this.

Medical Parole Law in Action: The State Focuses on Expensive Inmates

SB1399, recently passed by the legislature, allows the state to grant inmates medical parole. It confirms sections already in the existing penal code, but note the cost-related rationale:

The California state prison health system has identified 21 inmates whose average annual health care and guard costs total more than $1.97 million apiece. This is approximately $41.4 million a year for the care of 21 prisoners. These inmates are located in off-site nursing facilities or hospitals which require paying guard time, even though these prisoners are severely incapacitated. Eleven other inmates are inside prison health centers, where their annual medical bills average $114,395 each. There are currently 1,300 California state inmates whose health care costs exceed $100,000 a year. Inmates released on medical parole would shift the cost of their health care from the state to the federal government as prisoners cannot enroll in Medi-Cal or Medicare, but paroles [sic] can.

CDCR news has reported granting medical parole to the 7th inmate since the passage of the law.

As I’ve said elsewhere, humonetarianism is not unlike the risk management regime that has permeated corrections in that it is busy conducting selective incapacitation and grouping people into categories. But note the shift in focus: Rather than focusing on risk as the dominant category for classification, we are now focusing on cost.  The cost-centered discourse and practice are shifting the way we look at the prison population. Rather than focusing on the high-risk inmates, we are focusing on the expensive ones as targets for reform and legislation.

Oh, and apropos costs: I’m working on a book that examines the impact of the financial crisis on the American correctional landscape, focusing particularly on California. Basically, it would be a book about humonetarianism. Your thoughts and contributions about this fascinating phenomenon, which I’ve been documenting here for the last two and a half years, are most welcome.

Isolation at SHU Reconsidered

The Pelican Bay hunger strike has created a ripple effect of attention. This morning’s piece on the San Jose Mercury News is encouraging.

State regulations say there are two ways to enter the Security Housing Unit: commit a new violation while incarcerated or be a validated member of one of six prison gangs.
It is the gang designation that has caused the most controversy.


At the Assembly hearing, several speakers said the California Department of Corrections should move from showing mere association with a gang to proving criminal activity.


“I’ve seen a great deal of variance as to how gang validation protocols are applied,” said San Francisco Bay Area attorney Charles Carbone. He attributes the “wildly different interpretation” to a lack of training, and said gang validations are “decided by personality, not by policy.”


Many relatives of SHU inmates said their loved ones had been unjustly validated. For example, one of the three pieces of evidence needed to validate an inmate could be the word of a debriefing informant or possession of a George Jackson book, such as “Soledad Brother.”


Jackson was a founder of the Black Guerilla Family, which corrections officials define as a prison gang. He was shot to death by prison guards in San Quentin Prison during an escape attempt.


In addition to those who may have been wrongfully labeled, the SHU is by gang members’ own admissions home to members and leaders of the Nuestra Familia, Aryan Brotherhood, Mexican Mafia and the Black Guerilla Family.


In fact, the Nuestra Familia’s rules state that its top leaders must reside in Pelican Bay’s Security Housing Unit. Current and former gang members have told The Monterey County Herald they thought it was a point of pride to be sent to the SHU, because all the leaders were housed there.
To earn a gang SHU term, corrections regulations state that an inmate must be more than a street gang member, such as Norteño or Sureño.


The SHU stay for a prison gang member is indeterminate, meaning the inmate cannot leave the unit until his prison sentence ends — or he leaves his gang through a process of debriefing, which carries the stigma of “snitching.”


Corrections officials have contended this is the only viable way, because transferring an active prison gang member into the general population would jeopardize inmate and officer safety.
Other states, though, offer programs based on good behavior that can lead to release from a SHU without having to inform on others.


California corrections undersecretary Scott Kernan said his department is studying SHU criteria from 28 other states and is developing new policies.


Those policies will next be reviewed by “stakeholders,” he said.

Not a week goes by that I don’t receive a letter from Pelican Bay, in which an inmate protests a wrongful classification as gang member. Reconsidering the way in which these classifications are made is long overdue.

SB9, Review of Juvenile LWOP: A Few Misperceptions Corrected

Our posts about SB9 yielded several reader comments, some of which I had to refrain from publishing because of their incendiary tone. I thought it might be worthwhile to tackle some of the misapprehensions regarding SB9. While I think SB9 is a great idea and endorse it wholeheartedly, I am not officially affiliated, politically or financially, with Senator Yee or anyone else involved. Therefore, consider this an academic’s opinion, rather than political propaganda.

This proposal sets dangerous people loose in the streets.

The proposal addresses only two hundred inmates or so, and none of them is being set loose in the street quite yet. What the bill does is allow a judge to review again the case of juveniles sentenced to LWOP after they have already served at least a fifteen-year sentence. And even then, the judge will only have the ability to modify the sentence to twenty-five to life. Overall, it’s a fairly mild proposition.

Aren’t these people dangerous?


Well, some of them might be, and some of them might not. It will be up to the judge to review their history, when petitioned to do so, and to assess whether it is risky to make them eligible for parole. There will be discretion about this. What we know about the trajectory of criminal careers tends to suggest that, for many folks who committed crime in their teens, age tends to “mellow people out” and they become less dangerous as they age.


If it’s only a few hundred people, why is this such a big deal?

In the grand scheme of things, it’s not a big deal at all. A handful of inmates will be serving a very long prison term, rather than an even longer one. But the difference to the individual, in terms of offering a ray of hope, is immense.

Doesn’t that teach juveniles that it’s okay to murder?

Not at all. Twenty-five to life is a very long time for a young person. And that’s assuming that juveniles even think about the repercussions when committing crimes, many of which are expressive crimes rather than cold, calculated ones.

We’re not really saving a lot of money by letting these people out earlier than expected, are we?

That’s impossible to answer accurately without proper data. However, it stands to reason that the older our inmate population is, the more we’ll be spending on its health care, which is already approximately one third of our correctional budget. Letting someone out when he or she is in his or her fifties, rather than letting him or her die behind bars, might spare us some of the costlier inmates and allow us to focus resources on others who need urgent care.

They committed murder and deserve never to see the light of day again.

Well, that is a legitimate opinion, but what someone “deserves” depends on your definition of just desert. Spending twenty-five to life behind bars, subject to violence, overcrowding, and prisons devoid of rehabilitative programming is very far from being a walk in the park.

What about the victims’ families?
That is very much a matter of personal feeling. Many families of murder victims feel immense amounts of rage and sadness and translate those to a wish that the perpetrator of their tragedy rot behind bars. That is understandable. But it doesn’t mean that the state has to grant these wishes to the letter. Moreover, there are plenty of families of victims who do not derive satisfaction from revenge or retribution, and would much rather the money spent on incarceration be spent on more and better homicide investigation, to prevent future tragedies. There are many people who feel this way; the media exposes you to the vocal, angry ones, and they do not necessarily represent everyone.

If the legislators think LWOP sentences should be reviewed, why not abolish LWOP for juveniles altogether?

At this point, Supreme Court case law regards LWOP for juveniles as constitutional for murder (not for other offenses.) Maybe future cases will follow the rationale of Roper v. Simmons and extend the abolition of LWOP to murder as well. But this is an opportunity to do something, now.

For a matter pertaining to so few people, this is eating up plenty of public energy and discourse. Why are we dealing with this, rather than with death penalty abolition and fighting mass incarceration?

Because this is easier to achieve, and these folks need some attention, too. But there is a bill on the CA ballot to abolish the death penalty. There’s also a bill to reform the Three Strikes Law. And it’s about time.

Crimmigration: The Dark Side

The Lawyers’ Committee for Civil Rights, with the ACLU and several other civil rights organizations, have filed a lawsuit seeking to stop the practice of shackling undocumented immigrants appearing before immigration court. The Huffington Post reports:

According to the lawsuit, the overwhelming majority of prisoners who show up in immigration courts have no violent criminal history. The lawsuit seeks to compel the Department of Homeland Security to make individual determinations about shackling rather than have a blanket policy. DHS officials declined to comment Wednesday.

This practice, and others, are an example of the false dichotomy between criminal and immigration matters. Make no mistake – these two issues are closely interrelated, as the financing of Arizona’s SB 1070 by private companies demonstrates. Shackling is a distressing practice, and we’ll be following this lawsuit closely.

Extra credit: As always, the question if one of incrementalism versus radicalism: Is the call to “stop treating undocumented immigrants as criminals” equivalent to a call that perpetuates treating criminals the way we have been treating them? Hmmmm.

Book Review: The New Jim Crow by Michelle Alexander

A couple of months ago I attended a dinner fundraiser by the American Friends Service Committee and had the pleasure of hearing Michelle Alexander speak about her book (full video of the speech, as well as an interview with Alexander, available here.) I immediately bought a copy of the book and was very much looking forward to reading it. It did not disappoint, and while its basic argument is not novel, the book presents it in a compelling, engaged way.

The New Jim Crow is an attempt to take the prison-slavery comparison, often made as hyperbole, seriously. In order to do so, the book begins by providing a basic and concise introduction to race relations in the United States before, during, and after slavery. Readers unfamiliar with the post-reconstruction nadir of American race relations would do well to examine the particulars of life at the time, because, as Alexander demonstrates, much of the racial discrimination we see today through the correctional system has its roots in the disenfranchisement and separation of those days. Simply put, in the aftermath of the Civil War, the seeds were planted for a thriving system of discrimination and segregation that would utilize very similar methods to create a caste system, originally based on the color of one’s skin, and now using one’s status as a felon as proxy for said color.

The following two chapters provide a basic summary of the criminal process, relying for the most part on Supreme Court cases, and demonstrating how racial biases permeate the process from policing till release from prison. Readers with legal and socio-legal backgrounds may find these chapters somewhat oversimplified and spot some inaccuracies, but for a general audience this overview clearly communicates the message: A seemingly colorblind system is loaded with opportunities for discretion that generates the overrepresentation of African American men in the criminal process, and by exposing them in vast disproportion to this horrifying experience, generates an underclass deprived of a share in American conformity.

Alexander sets out to show that the role of race in the criminal process and in mass incarceration is not accidental. This argument, in itself, is not new. In her 1999 book Making Crime Pay, Katherine Beckett provides a full analysis of the political campaigns of the late 1960s and clearly shows how Nixon, and other candidates, relied on fear of crime and rising crime rates to confront, head on, the civil rights movement of the 1960s. The Warren Court’s lenient approach to defendants, and its tendency to generate bright-line rules limiting the discretionary powers of the police and prosecution, became the enemy, and was a thinly-veiled foil for the ‘real’ enemy, race inequality. Alexander’s book, however, makes this argument more accessible to the general public. By substituting crime for race, Nixonian politics succeeded in combating their real enemy, while maintaining a façade of race-neutrality.

My favorite chapters of the book are the last ones, in which Alexander takes on the broader implications for society of a caste system driven by crime control. She discusses the impact of criminal record and inmate disenfranchisement on a complete alienation of the African-American community from the political process and from access to basic necessities and rights. And, she sounds a loud wake-up alarm to those who have basic sympathy to the idea of criminal justice reform and race equality but who may not have made the connection explicitly. The ideal audience for this book, whom Alexander mentions in her introduction, would be folks who think that the comparison between Jim Crow and mass incarceration is merely rhetorical hyperbole. Upon reading this book, they may be convinced otherwise.