In 1972, New Orleans native Herman Joshua Wallace (b. 1941) was serving a 25-year sentence for bank robbery when he was accused of murdering an Angola Prison guard and thrown into solitary confinement. Many believed him wrongfully convicted. Appeals were made but Herman remained in jail and—to increasingly widespread outrage—in solitary. Years passed with one day much like the next. Then in 2001 Herman received a perspectiveshifting letter from a Jackie Sumell, a young art student, who posed the provocative question: “WHAT KIND OF HOUSE DOES A MAN WHO HAS LIVED IN A SIX-FOOT-BY-NINE-FOOT CELL FOR OVER 30 YEARS DREAM OF?” Thus began an inspired creative dialogue, unfolding over hundreds of letters and phone calls and yielding a multi-faceted collaborative project that includes the exhibition “The House That Herman Built.” The revelatory art installation—featuring a full-scale wooden model of Herman’s cell and detailed plans of his dream home—has brought thousands of gallery visitors around the world face-to-face with the harsh realities of the American prison system. But as Herman’s House reveals, the exhibition is just the first step.
When: 6:45 Where: The New Parkway Theater, Oakland Admission is $10. See you there!
Today’s Daily Journal story about our petition. Please click to enlarge.
On July 16, US District Court Judge Cormac Carney issued a decision in Jones v. Chappell (2014), vacating Ernest Dewayne Jones’ death sentence. But this was far from a decision in a particular case: Judge Carney declared the death penalty in California unconstitutional, citing the lengthy delays in its administration.
As the decision notes, since the reinstatement of the death penalty in California in 1978, only 13 people have been executed. Meanwhile, 95 inmates have died of natural causes or suicide, 39 were granted relief from their sentence, and the remaining 748 are languishing on Death Row, some of them for decades. More than 40% of the condemned population has been on death row for more than 19 years, and nearly all of them are still engaged in expensive, lengthy litigation—direct and collateral review proceedings—funded by the state. The arbitrariness in the administration of executions, according to Judge Carney, echoes the historical concerns in Furman v. Georgia (1972), and undermines any deterrence arguments, to the extent that these are still credible.
But while Judge Carney believes that these delays have made the promise of capital punishment an empty one to California citizens, to jurors, to victims and their loved ones, he does not believe that these defects can be remedied simply by streamlining the death penalty and executing inmates faster. He convincingly argues that much of the delay in litigation is the state’s fault, but points out that all efforts to reform post-conviction remedies have failed, and that cutting them would increase the grave risk of mistakes and wrongful executions. While the order pertains only to Mr. Jones, generalizing Judge Carney’s conclusions to all those affected by a system that “serves no penological service” is unavoidable.
The unavoidable question is, what next? The ball is currently in Governor Brown and Attorney General Harris’ court. They must decide whether the state will appeal the decision to the Ninth Circuit. A day after Judge Carney’s decision, I started a petition on Change.Org, asking Attorney General Harris not to appeal the decision, which, as I write these words, bears 2,078 signatures. The Governor and the Attorney General are not known to be fans of capital punishment, and I believe that a refusal on their part to stand behind the death penalty can communicate an important symbolic message that has the potential to place us on the much-awaited path to abolition. It would signal that our state government is fiscally responsible, and unwilling to continue wasting $100 million annually (according to the Legislative Analyst’s Office calculations) on the incarceration of a few people in a dilapidated facility, paying for expensive conditions and litigation, with or without an execution at the end. It would signal an acknowledgment that consistency and fairness are important tenets of our penal policy. It would signal that the botched execution of Joseph Rudolph Wood in Arizona—and the botched executions of many others, estimated as 3% of executions every year—indicate that there is no way to divorce the infliction of death from the infliction of suffering, even behind a sanitized, medicalized window-dressing. It would signal that, like Justice Blackmun in 1980s, we have tired from “tinkering with the machinery of death” and have finally acknowledged its profound dysfunction. And it would signal that these new considerations join the old abolitionist arguments, based on ethics, racial equality, and innocence concerns—in ushering in an era of abolition.
But beyond the symbolic message, there are the practical consequences associated with the State’s decision whether to appeal. Should the Attorney General appeal the decision, the Ninth Circuit might affirm it, in which case it will apply to the entire State of California, rendering the death penalty effectively abolished. However, the current Supreme Court makeup does not seem promising to the abolitionist cause, and an appeal of the Ninth Circuit decision will, in all likelihood, reverse Judge Carney’s decision. A possible appeal of such a decision to the Supreme Court will, likely, reverse the decision. The best scenario, therefore, for abolition would be a final, affirming decision on the Circuit level, without a subsequent appeal—but that scenario depends on a favorable Ninth Circuit panel and the Attorney General’s restraint in appealing that decision.
If, on the other hand, the Attorney General decides not to appeal the decision, we will find ourselves in an interesting situation. As many California residents recall, the Governor and Attorney General did not appeal Judge Vaughn Walker’s District Court decision, according to which Proposition 8, which amended the California constitution to forbid same-sex marriage, was unconstitutional. Supporters of the initiative, who appealed the decision in their stead, were found by the Supreme Court to lack standing, and Judge Walker was left as the final decision on Proposition 8’s constitutionality. Lest our short memory confound us, California’s death penalty is also the product of a voter initiative: Proposition 7, the Death Penalty Act, of 1978. Moreover, some of the original supporters of Proposition 7 have now joined the abolitionist cause, so even if they had standing, they would probably lack the motivation to fight the decision.
There is, however, an important legal difference: Judge Walker’s order was an injuctive relief against the state. Judge Carney’s decision merely vacates Mr. Jones’ death sentence. In the absence of an appeal to the Ninth Circuit, further legal and political steps would be required to move from a particular case to a de-facto abolition of the death penalty in California.
The easiest situation would be that of inmates under sentence of death who have a pending federal habeas claim in the Central District, who could argue their case should be heard by Judge Carney, as a “related case”. The decision would be up to Judge Carney’s discretion, though it seems clear from the tenor of his decision that he meant for it to have an impact beyond Jones’ case alone. Also, the decision raises the question whether other Central District judges can ignore it in similar cases if Judge Carney does not, for some reason, find that they are “related”.
Inmates outside the jurisdiction of the Central District would face more of an uphill battle. Judge Carney’s decision, while of persuasive value, is not binding in other district, nor could they benefit from an “issue preclusion” claim, as they were not original parties to the action. This is where the good will of the Attorney General’s office and the other District Courts would come into play; surely we wouldn’t want to see the death penalty effectively ended in one California district and have other inmates on death row. Another possible scenario would be that, in order to correct the grave injustice of having some inmates benefit from a general decision while others don’t, the Governor could commute the sentences of all death row inmates to life without parole, and with the support of the California Attorney General, we could enter another period of moratorium.
The possible legal outcomes of Jones, therefore, run the gamut from one inmate’s victory to a de-facto moratorium in California. The eventual impact of the decision depends on the sound discretion and good will of many actors in the legal and political arena in the state. Last, but not least, of these actors is the public. In 1978, 71% of California voters supported the death penalty amendments. After many years of delays, mistakes, discrimination, litigation over chemicals, and expenses, support for the death penalty plummeted to 53% in 2012. Whether the courts and administration will bravely turn the tables before the public tide is completely reversed remains to be seen, but a comparative perspective shows that the road toward abolition—toward progress—is a one-way street. Let’s get this done.
Hidden from sight and forgotten from mind, American prisons in the last forty years have been horrific Petri dishes for medical neglect, interpersonal cruelty, and unspeakable conditions. California, which incarcerates the largest number of inmates (albeit not the largest per-capita), has been particularly notable for its abysmal incarceration practices, so much that, when commenting about his first impression of supermax institutions, Judge Thelton Henderson said to criminologist Keramet Reiter, “what was surprising to me was the inhumanity of the thing.” Jonathan Simon’s new book offers the general public a sobering look into California prisons through the prism of federal court decisions, which encourages humanism and empathy and does not allow the reader to look away.
The book tells the story of several federal court decisions that tackled, head-on, the crux between mass incarceration and prison conditions. It begins with Madrid v. Gomez (1995), which exposed the conditions at supermax institutions and critiqued their application to the mentally ill, and proceeds with Coleman v. Wilson (2009) and Plata v. Schwarzenegger (2009), which addressed, respectively, serious mental and physical health care neglects, culminating in the Supreme Court decision in Brown v. Plata (2011), which affirmed the connection between the mass incarceration project and its outcome—extreme prison overcrowding—and the conditions behind bars. Simon’s account of the decisions, and the horrific abuse and dehumanization that brought them about, highlights two main themes. The first is the nature of American incarceration (and California incarceration in particular) as a veritable human rights crime of massive proportions, pulling it out of the American tendency to view things through an internal, exceptionalist lens. The second is the inherent connection between mass incarceration and prison conditions, which are frequently discussed separately in academia and public policy. To Simon, both are manifestations of an overall correctional mentality of “total incapacitation”: a systemic fear of crime and blanket assumption of dangerousness, coupled with insecurity about the ability to correctly gauge risk, which leads to indiscriminating incarceration of high-risk and low-risk individuals for lengthy periods of time without consideration of the conditions of their incarceration, or of the logistics necessary for their humane confinement. The court decisions reviewed in the book, argues Simon, signal a departure from this ideology, which he defines as a “dignity cascade”: a willingness to relate to the inmates as human beings who are entitled to more than “bare life”, but to personal safety, health, and human company.
Indeed, Simon’s book itself can be seen as an important contributor to a “dignity cascade”. Written in an engaging, accessible style, and providing the personal stories of plaintiffs in prison condition cases, Simon humanizes the individuals involves and evokes empathy and care for their preventable, horrible plight, while still making the bigger point that the violations are a systematic problem rather than isolated occurrences. While the book does not clarify the extent to which Simon attributes intent, or design, to the correctional officials, it certainly drives home the point that cruelty is the rule, rather than the exception, and the need to change that through a deeper commitment to treating humans with dignity and respect regardless of their transgressions.
There are a few places, however, in which Simon and I part ways. One of them is in his historical account of the path to total incapacitation, which paints the rehabilitative period in California corrections in what I think are overly rosy hues—especially when he ties the medical approach to incarceration to the eugenics movement. I also think that Simon gives the court decisions, which are undoubtedly important, too much significance in the overall scheme of California corrections. I wish I could be persuaded that these few decisions, the most recent of which and the focal point of the book was decided 5:4, were powerful enough to create a veritable “dignity cascade”. The book cites extensively dignity-promoting language from Justice Kennedy’s opinion in Plata, but does not include the parts in Justice Scalia’s dissent in which he referred to the inmates as “specimens”—a shameful opinion that I find hard to ignore with four Supreme Court Justices behind it. Even federal judges who are hailed as champions of inmate rights don’t always make decisions that promote dignity; in the fall of 2013, Judge Henderson (of Madrid v. Gomez fame) cleared the path to force-feeding inmates in solitary confinement who were protesting against indefinite segregation. Moreover, attributing the change in California—namely, the Criminal Justice Realignment—solely to the decision in Plata ignores the lengthy political machinations behind the Criminal Justice Realignment, which were driven by budgetary concerns and by other pressures as well as by the court’s decision. This is particularly problematic given the state’s acrobatic wiggling out of responsibility and its inability, and unwillingness, to follow up on the decision, almost to the point of contempt of court. While the language of the opinions themselves is important and meaningful, I wish we were offered more political and legal backstage access to the litigation, as well as more credit to the grassroots activism of inmates themselves, included but not limited to the hunger strike.
While I am less optimistic than Simon about a veritable transformation of public opinion about the mass incarceration project through federal court decisions, I find his call for dignity and for acknowledgment of the vast human rights violations incredibly inspiring, and like him, and anyone invested in the promotion of human dignity, I hope to see the spirit of John Howard’s progressive prison reform, and of the 1960s Warren Court decisions, channeled into this new era of prison litigation. After reading Mass Incarceration on Trial, no one can remain in a state of denial or indifference to the plight of fellow human beings, and this book is an important contribution not only to their dignity, but also to our own.
A few years ago we reported on Patricia Krenwinkel’s parole denial. Today’s New York Times includes an emotional opinion piece by Krenwinkel, looking back on her life and speaking about the Manson family, her crimes, the years in prison, and her self identity.
Will Krenwinkel ever receive parole? I doubt it. Even with our recasting of old and infirm inmates from risky to expensive, the Manson Family murders have a strong symbolic hold over our culture and imagination, and our revulsion of violent crime expresses itself in our fears and vindictiveness. As some readers may recall, another Family member, Susan Atkins, died in prison and was denied parole despite advanced cancer and disability.
But what I find notable here is something that sometimes gets forgotten in anti-prison advocacy: the importance of a message of responsibility. This is what makes me a radical realist. I truly believe that violent crime is real. I don’t think it’s common, nor do I think it justifies the mass incarceration machine and the human rights violations behind bars. But to victims, actual and potential, homicide, assault, and sexual abuse are frightening and damaging and debilitating. And no matter what environmental considerations we take into account, we must not discount the importance of taking personal responsibility. Not as part of a retributivist approach, but as part of a social prevention strategy.
When people who committed violent crime take personal responsibility for their crime, they teach us that redeeming the soul from shame and guilt is possible. They teach us that the victim is no “other” and that our shared humanity means we can have empathy for one another. It means that women are not hoes, cops are not pigs, rival gang members are not animals, people at work one begrudges are not monsters, old people are not dispensable, people of different ethnicities and family structures are not despicable. They teach us that life goes on behind bars, and that even though conditions may be atrocious and require a struggle, there may also be an internal struggle to mature and understand and know yourself better. And perhaps, if victims and potential victims are people, then the inmates serving time for violent crimes are not monsters, either–they are people, like you and me, who did terrible things, and while we expect them to pay a price, and to protect society from the danger they pose, we also should treat them as human beings.
