Monthly Archives: March 2015

Obama Dusts Off Clemency Power for Drug Offenders

Screen Shot 2015-03-31 at 10.12.35 PMOn Tuesday, President Obama commuted the sentences of 22 people who were given life sentences for intent to distribute an illegal drug. These commutations more than double the number of commutations he gave in the last six years; he’s taken advantage of his clemency power less than any of his predecessors since Eisenhower.

He signaled this series of commutations as the beginning of a more aggressive approach, and intends to focus his clemency power on those who got long sentences for non-violent drug crimes. While I worry about the administration’s ongoing emphasis on a certain type of prisoner, I appreciate Obama’s resistance to the typical preference for white collar criminals, and I hope that in his final stretch in office he’ll go big.

Check out a representative sample of the letters than accompanied his decision (it’s not entirely to my taste, but he ended on a high note):

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Disenfranchisement Perpetuates Inequality, Skews Elections to the Right

Screen Shot 2015-03-30 at 8.12.47 PM5.85 million people, including 1 in every 13 Black persons, can’t vote. This sounds like some classic Civil Rights shit to me (and, in fact, this is vintage Jim Crow that just won’t stop), but somehow we’ve persisted with the idea that the right to vote is negotiable for people in prison or with a criminal record.

As the beautiful graphic (courtesy of the Sentencing Project) illustrates, the only states in the nation with no felony disenfranchisement laws also happen to be two of the three whitest states in the U.S. (they’re tied with New Hampshire, each 96% white). On the other end of the spectrum, in states with harsh disenfranchisement laws like Florida, Kentucky, and Virginia 1 in 5 Black men can’t vote.

Disenfranchisement is a huge problem for three reasons:

1. It presents a completely unnecessary barrier to successful reentry and sends the message – particularly in lifetime disenfranchisement states – that you’ll never be able to “do your time” and return to full citizenship. It’s just one more way that we set aside a group of people, predominantly poor, Black people, as “less-than” and call it something other than racism.

2. It delegitimizes our democracy. Our system of governance, flawed though it is, relies on the idea that if representatives aren’t doing their jobs “We the People” will vote them out. For the 2.5% of Americans who have been stripped of their voting rights, this premise is baseless.

3. It changes election outcomes. Based on voter demographics, at least 6070% of the disenfranchised population would likely vote blue if they had the right to vote and acted on it. If Florida allowed people with felony convictions to vote at any time after conviction, Al Gore would have won Florida and, therefore, the presidency. And because many races are won on such tight margins, studies have predicted that without felony disenfranchisement at least 7 senatorial races since 1978 would have gone to democrats instead of republicans, likely giving democrats control of the senate through the 1990s (and preventing Mitch McConnell‘s election… sigh).

There’s a trickling tide toward reform in the works, including federal legislation proposed by Rand Paul that would give people convicted of non-violent felonies the right to vote after being released from probation or incarceration. It’s time to face up to the reality that these laws are the surviving party of the Jim Crow laws that the Voting Rights Act of 1965 was intended to wipe out and return this fundamental democratic right to all citizens.

Exhibit Reproduces Solitary Confinement

Screen Shot 2015-03-29 at 8.02.33 PMA replica of a 6×12 solitary confinement cell was on display at Marquette University in Milwaukee last week. The cell, which comes with a recording of shouting and banging on walls similar to what would be heard in prison, was built at Edgewood College in Madison and has made several appearances around Wisconsin. Its purpose is to give people a realistic sense of what it’s like to be solitary, though of course it’s fundamentally different to be able to walk away at any time. Although visitors can stay inside for as long as 45 minutes, few last longer than 10.

Don’t Shoot

Utah has decided to bring back the firing squad. This decision was motivated by a shortage of lethal injection drugs, whose European manufacturers refuse to sell them to U.S. prison officials for the executions.

Screen Shot 2015-03-27 at 9.08.23 PMIt’s no surprise that European drug companies aren’t on board with the whole execution thing: the only country in Europe still executing people is Belarus (2 people were executed in Europe last year). In contrast, the only countries that use the death penalty more than the U.S. are Saudi Arabia, Iraq, Iran, and China. Woof.

The death penalty is on the decline nationwide; 2014 had the smallest number of execution in 20 years with 39 people executed, and fewer death sentences were handed down as well. Changing public sentiment may be guiding the shift. One widely shared concern relates to the alarming rate of false convictions: 150 people on death row have been exonerated nationwide, and the National Academy of Sciences estimates that 1 in 25 death row inmates are likely innocent.

But some experts believe that the decline is largely due to unavailability of lethal injection drugs, which became a significant issue for prison officials in 2011 when the European Commission blocked exports of all known lethal injection drugs with the explicit purpose of “abolishing the death penalty worldwide.”

Screen Shot 2015-03-27 at 10.20.59 PMSo what to think about Utah’s archaic “solution” to the shortage? Sister Helen Prejean, human rights leader and anti-death penalty activist, thinks it’s a good thing. “I think the firing squad is more honest in a way and transparent, that you’re actually killing a person,” she opined. “You’re going to see the blood dripping from the chair. I think, in a way, it’s more transparent. I think it’s going to help end it quicker.”

I agree that lethal injection seems to put an incongruously “humane” face on killing a person. But I worry that we’ve simply gone too far down the road of dehumanization to be much moved by watching someone get shot to death and bleed onto the floor.

Corrections officers, prison administrators, and even prison medical personnel have witnessed (and caused) incredible pain and suffering, both physical and mental, to people in their custody and dismissed it as faked, provoked, or deserved. A couple of weeks ago Missouri executed a 74-year-old man with severe brain damage for goodness’ sake. And, like every other problem associated with the criminal justice system, this is some racist shit: death sentences are more likely to be given to Black offenders, and they’re most likely when the victim was white.

Like Sister Prejean, I hope that this alarming move on Utah’s part will serve as a well-needed wake up call, but until we recognize the people we’re killing as people, I’m skeptical that society will be “up in arms” about it.

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Abolition, Seriously

Prison abolitionists get a lot of blank looks. Get rid of prisons? But – the bad guys! Didn’t you watch True Detective? To which I have three responses:

1) Remember that most people in prison are more like this guy:

Than this guy:

2) Incarceration rates have almost no relationship to crime rates. I know that’s difficult to accept if you believe that prisons are about preventing crime (and if you think that, read The New Jim Crow), but trust me on this: our prison population is the result of a series of choices, not a result of bad behavior.

  • Politicians make choices about what to criminalize.
  • Police make choices about where to hang out and who to search, arrest, etc.
  • Prosecutors make choices about what (and whether) to charge and how many years to demand.
  • Parole commissioners make choices about who to release.

All of these choices in the U.S. have been increasingly punitive (not to mention racist) for decades regardless of the crime rate at the time. And countries with rates of crime similar to our own have made different choices. For instance, with very similar crime rates during the time the U.S. prison population grew 500%, Germany’s prison population stayed the same and Finland’s decreased by 60% (per The New Jim Crow). State to state incarceration rates and crime rates do not line up (in fact, it looks like lower incarceration rates reduce crime – more on that later).

3) For the fringe cases (see guy in underwear, above), confinement may be necessary. When I say “abolition” I do not, actually, mean abolition of consequences for wrongdoing, nor do I mean abolition of confinement when someone is truly, clearly a threat to society. But confinement doesn’t have to look a thing like prisons in the U.S., either. The violent, oppressive, demeaning, and miserable conditions of our jails and maximum security facilities in particular are totally gratuitous. They are evidence that we don’t view the people in prison as humans. If we actually limited confinement to people who were dangerous, and then viewed the top priority of confinement as changing that fact so that those people could safely return to their communities as soon as possible, we might take a leaf out of Scandanavia’s book, and create economically efficient but comfortable, relatively autonomous spaces where people would suffer the loss of liberty and be separated from society without also being systematically degraded and institutionalized.

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So – here’s my take on prison abolition:

  • A small percentage of the people in prison are actually there because they’re a threat to public safety and must be removed from society.
  • That small percentage should be confined, but should also be treated as humans, which means being reasonably comfortable and as autonomous as possible, and returning to society if possible.
  • Prisons as we know them – and use them – must be abolished.

Police Reformers Emphasize Department Culture

How can we heal the rift between police officers and the communities they patrol, improve public safety, and reduce violence committed by and against officers? That question was at the heart of a recent panel on police reform at NYU Law. An impressive group of panelists with experience as community leaders, police officers, civil rights prosecutors, and public defenders shared a range of ideas with a common thread: a change in department culture is the key.

Screen Shot 2015-03-25 at 11.28.39 PMEric Adams, Brooklyn Bureau President and former police officer and state legislator, opened the discussion by asking the audience to raise what they were drinking. Analogizing to the successful culture shift from drinking soda to drinking water, he stated, “We have evolved as a society – policing has not.” Changing the culture within police departments will require “getting them to leave the Pepsi on the table.”

Camden Police Commissioner J. Scott Thompson elaborated on the idea of a culture shift, calling it a shift from “warrior to guardian.” Getting out of the patrol cars and into communities is the first step. In Camden, this meant (among other things) literally loading up paddy wagons full of cops and dropping them off in neighborhoods for the day. “You’re not going to change the culture through classroom training,” he explained.

Building trust between community leaders and police officers isn’t just good for PR purposes – it has the potentially to significantly reduce crime. “In some of the most dangerous neighborhoods in the world, which were in Camden, we reduced the homicide rate by 50%. We didn’t do it by incarcerating people,” Thompson explained. “We did it by empowering the matriarchal and patriarchal figures in the community.”

Another panelist, NYU Law Clinical Professor Kim Taylor-Thompson, reinforced this idea. Studies have shown, she argued, that police officers – including police officers of color – are operating with embedded racial stereotypes that shape the way they approach certain communities, leading to disparate stops, arrests, and use of violence. Fixing this (huge) problem requires understanding the problem, and it requires exposure to members of the community that you’re policing that doesn’t start and end with a crisis. Police officers need to understand that the categories the criminal justice system imposes – offender, victim, etc. – are “permeable – they change every day.” When you see someone in contexts other than crisis, you see them as more than a threat to public safety.

Police academies don’t typically teach officers how to have casual, pleasant conversations with people in the communities they’re patrolling, but Adams had some concrete ideas for getting a new discourse off the ground. Cops who walk beats usually aren’t responding to calls – they could use that time effectively. “We’ve got a pre-K program – have them spread the word about that. We have a new municipal ID program – they could be talking to people about that. They could be saying ‘Hello.'” It’s Adams’ view that this could create a cascade of change in a community: “All of a sudden, you’ll have people talking about their neighborhood cop at cook-outs, at church.”

Another concrete recommendation for change included a shift regarding ways that departments get money. Right now, most funding programs ask questions about the number of arrests you have. As panelist James Johnson put it: “What are the questions you’re asking? What are the practices you want to see?” If those aren’t aligned, then you’re sending mixed messages.

Christy Lopez, Deputy Chief of the Civil Rights Division, Special Litigation Unit, in the U.S. Department of Justice, suggested motivating good policing by emphasizing something most cops are drawn to already: legality. They’re here to uphold the law, she argued, and they are motivated to follow it themselves. But that requires consistently upholding standards not just within police departments, but throughout the whole criminal justice system.

Mixed messages come from prosecutors and judges, figures that Adams described as the “co-conspirators” of bad policing. These actors in the system know when they’re seeing the results of overly aggressive, racist policing. When they play along, they validate bad actors, a message that responsible, idealistic officers will absorb.

Lopez pointed to another complicit party: partners. Advocating for training on peer intervention, she pointed out how powerful a voice of reason could be. “How much better would these situations we’re talking about be if the partner has just stepped in?” she asked. Training on peer intervention – and support within the department for officers who are willing to intervene – would go “much further than body cams.”

NYC Police Commissioner Bill Bratton has a different strategy for change in mind: turning resisting arrest into a felony. “We need to get around this idea that you can resist arrest,” he told NPR in December. “It results in potential injuries to the officer, to the suspect. And we need to change that, and the way to change that is to start penalties for it.”

Taylor-Thompson disagrees. She described representing clients charged with resisting arrest while with the D.C. Public Defender Services. Those clients were often beaten so badly they were hospitalized, while the police officer involved walked away unscathed. This led her to conclude that these charges were nothing but a cover for officers to justify use of force. Talking about increasing penalties is “missing the point,” she said.

But what can we do with departments that aren’t willing to make reforms on their own – or even to admit there’s something that needs to be reformed? Lopez recently returned from the prototypical example of just such a department: Ferguson. “Within moments, it was obvious this was a troubled department,” she said. “I don’t think we’ve ever used the word ‘compassion’ in a DOJ report, but that’s what it was – the lack of compassion was just so palpable.” She was particularly explicit about (very) thinly veiled racism she heard from officers she interviewed. “It was more normal, less harmful, for Black people to go to prison. ‘Some people just need to take responsibility’ was the message. This is what they were telling themselves – this is how they slept at night.”

Ferguson may be the poster child for problem departments,but the panelists made it clear that racism is a problem everywhere. Adams, for instance, described training a rookie officer in a housing project when he was a cop. The rookie pointed to urine in an elevator to say that the project residents didn’t deserve their help. “One person pissed in an elevator,” Adams responded, “a hundred others are just as upset about it as you are!”

Taylor-Thompson explained the message that was drilled into her growing up a Black girl in the Bronx: if a police officer talks to you “don’t talk back; pray they won’t do anything.” The idea that police officers might be violent was normalized. Adams talked about being arrested and beaten by police officers when he was 15 (“My brother and I peed blood for weeks”), and Johnson described moving slowly when he was pulled over because he knew that “your next fast move might be your last.”

Changes need to happen, and for some departments they will undoubtedly need to be imposed from the outside, like Lopez’s work with the DOJ in Ferguson. Change can also come from internal leadership, as Scott has shown in Camden. And it can come from local pressure, like that Adams is advocating in Brooklyn. Whatever the source, confronting racism head-on and turning to communities for guidance and partnership will be instrumental.

And what about the rest of the system? Adams pointed out that police officers don’t need to be identified exclusively with the criminal justice system – they’re already engaged with communities in many ways, and that can be expanded. But realistically the shortcomings of the rest of the process will be reflected on the gatekeepers: police officers.

“Police bear the brunt of the problems within the rest of the criminal justice system,” Lopez acknowledged. Improvements to the rest of the system will make their jobs and reputations better as well.

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Supreme Court Decision Will Affect Thousands Serving Life Without Parole Sentences

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The incomparable Bryan Stevenson, arguing Miller v. Alabama. Credit: Art Lien, Supreme Court artist.

The Supreme Court agreed on Monday to consider retroactive application of Miller v. Alabama, a crucially important case about justice for youth in America. Although the 2012 Miller decision made mandatory life without parole sentences for minors unconstitutional (in violation of the eighth amendment ban on cruel and unusual punishment), the court has yet to rule on retroactively applying the decision.

Granting certoriari for this case (lawyer-speak for agreeing to hear it) is a huge step forward for the thousands of people who were given mandatory life without parole sentences as children, and who are incarcerated in states that have refused to retroactively apply the law. The plaintiff in the current case, Henry Montgomery, has been in prison since 1963, when he was seventeen years old. The law that imposed the mandatory life without parole sentence for Mr. Montgomery has been invalidated by the Miller decision, but Louisiana has thus far resisted reconsidering pre-2012 mandatory sentences.

Life without parole sentences for children are applied with frightening frequency. In 2013, roughly 2,500 people were serving life without parole sentences that they were given as minors. This is a population we don’t trust with drinking alcohol, smoking cigarettes, or voting. Yet somehow we’re prepared to give up on them completely as a society? Here’s a gem from the Miller opinion, written by Justice Kagan:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features–among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him–and from which he cannot usually extricate himself–no matter how brutal or dysfunctional. It neglects the … extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores … his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Should this ruling in Miller be applied to those sentenced before 2012? From a moral standpoint, of course it should (none of Kagan’s points magically sprang into being in 2012). The legal argument will hinge on whether the new rule is substantive (those are retroactive) or procedural (those aren’t). Basically, Montgomery’s team is arguing that since Miller applies to the type of punishment that can be applied to a class of people, it’s substantive. Louisiana will argue that the change was procedural – in Louisiana specifically, the procedural change was a new hearing where minors can present evidence to reduce their sentence – and therefore should not be retroactive. The substantive nature of Miller strongly speaks to the substantive nature of Montgomery’s claim as well – how can a finding of cruel and unusual punishment be categorized as “procedural”?  

So – good for the Court for granting cert on the retroactivity issue. And shame on Louisiana (and Minnesota, Michigan, and Pennsylvania) for requiring Supreme Court intervention. Best wishes to Mr. Montgomery and his team for another step toward thoughtful, humane criminal justice.

Photographs of young people sentenced to life without parole (all taken within a year of conviction). Courtesy of Human Rights Watch, available here:

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Mainstream Dehumanization, or, What John Oliver Taught Me About Mass Incarceration

Here’s one sign that the “common sense” about people in prison is totally dehumanizing: prison rape jokes. I struggle to wrap my brain around how rape jokes of any kind could be so mainstream, and yet it took John Oliver to get me to think about it, and I write this blog! So if it never occurred to you to question these not-so-subtle forms of social disdain, please don’t find yourself paralyzed by guilt (that’s tiresome) and also please watch John Oliver’s rant on prisons. This is seriously worthwhile even if you’re a better person than I and already knew prison rape wasn’t funny; he covers a lot (and there are muppets).

The Dangerous Class

Not long ago I was meeting with a young man at Riker’s, New York City’s infamous island of jails, when an alarm started sounding. “That sounds like my block” he told me, intrigued, as a number of correctional officers (“COs”) started flooding into the corridor outside our glassed-in meeting room. To my surprise, without saying a word to either of us (or the other man whose lawyer had just left and who was sitting nearby in the same enclosure), a CO came over and locked us in. Then I watched as five, ten, twenty COs suited up in what looked like a cross between football pads and hazmat suits. They drew long wooden clubs out of a bin next to their gear cubbies, and several of them clipped massive spray cans to their belts. “Pepper spray?” I asked my client. “Worse,” he responded. “This is way worse than pepper spray. It’s made for bears.”

He told me that he’s been nearby when it’s been sprayed before, and even just being close is terrible. “I coughed so hard blood came up,” he said. Hearing this description, and watching guard after guard show up to get in gear, I wonder how much of the extreme level of security we’re seeing can be attributed to real risk faced by officers. Certainly there is some risk – anyone incarcerated at Riker’s will tell you it’s a dangerous place for prisoners – but to send in twenty or more guards, with clubs and bear spray, I would think they ought to have a good reason. So I looked for some numbers.

In a ten-year period between 1999 – 2007, 113 COs were killed on the job. In a smaller timeframe, from 2001 – 2007, 356 prisoners were victims of homicide (and, side note, 1,386 prisoners committed suicide). By comparison, from 1999 – 2007, 1,529 police officers in the U.S. were killed, and, just to throw in another dangerous job, 335 coal miners died at work. Deaths are, obviously, just one piece of the puzzle, but it’s also an important marker of how dangerous a job really is. And although any number of deaths is too many, 113 in ten years sounds relatively low to me. Note that there are about 470,000 people currently employed as correctional officers in the U.S. today, so over ten years a generous estimate would be that 0.003% of COs are killed per year.

So what’s with the riot gear, the clubs, the bear spray? What’s with the regular complaints of egregious violence at Riker’s and elsewhere?

It’s my view – and I’m not alone here – that this comes from the idea that prisoners are part of a “dangerous class” who, regardless of the offense that landed them in prison and regardless of their conduct while incarcerated are perceived as violent animals who are liable to strike out in any way possible at any time. And it’s easy to see the connection between the level of security and surveillance in prisons and jails to the treatment of people who are perceived as part of this “dangerous class” on the outside. For example, black men between the ages of 15-19 are 21 times more likely to be killed by police than their white counterparts are, and the average sentence for murder grew 238% in the 80’s and 90’s. These are all manifestations of an idea of dangerous, bad people whose sentence and even whose offense are secondary to a general inhumanity.

The really low rate of death among correctional officers is probably due in part to the extremely high level of security employed, but it comes at the price of a widespread dismissal of the humanity of the people who are incarcerated (literally using products designed to keep vicious animals at bay). This is not the product of individual failings among COs, nor is the policing statistic a reflection of individual assholes in police departments, nor is the sentencing statistic a product of bad prosecutors personally bent on creating more punitive systems. These are symptoms of a fundamental shift in the way that we understand people involved with the criminal justice system, and more generally people of color and poor people in our society. This is the new face of prejudice that Michelle Alexander was describing in her blockbuster critique of our criminal justice system, The New Jim Crow. It’s what protesters in Ferguson, New York City, Madison, Charlottesville, etc. are calling out when they insist that #blacklivesmatter. It’s the message that Right on Crime and other conservatives are reinforcing when they call for justice only for non-violent, low-level offenders and fail to call our system into question more broadly. And, in my humble opinion, it’s why we need to fundamentally rethink not only how prisons operate, but also whether we should have them at all.

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Video Visits Threaten Valuable Time

On Saturdays, the visiting area at Otisville State Correctional Facility in upstate New York is a bustling, vibrant place. Wives and girlfriends, mothers and fathers, and children cluster around the tables laid out in precise formation down the length of the gymnasium-sized visiting area. Incarcerated men wait behind a line of tape in front of the vending machines while their visitors buy their snacks of choice. Families pose for photographs in front of a New York city themed backdrop, often the only photos that are taken of the men on the inside for the years they’re incarcerated.

I don’t think you could come to this place and miss the energy, the positivity, and the love that is apparent in these groups. Whether it’s the table where a middle-aged man and his father sit in silence playing cards or the multi-generational group whose little children, still in pajamas, are passed effortlessly around the table, all the visitors traveled here to see their loved ones and maintain a connection. This is somewhat notable at Otisville, which, as a medium-security institution, only houses people who spent significant amounts of time at maximum security facilities beforehand. And although Otisville is substantially more accessible to New York City than most of the facilities in the state, it still took my group two-and-a-half hours to get here by car – no hop-skip-and-jump.

And the prison has done a good job making the space as inviting as possible. Board games, toys, and coloring supplies can be checked out from the children’s corner. Vending machines are stocked with a wide variety of favorites. COs don’t seem to hover as you might expect, and there’s no Arrested-Development style “No touching!” heard while I’m there (I’m sure there are limits, but casual observation indicates that smooching is well within bounds).

It’s experiences like this one that make me so sad to read about the new trend in family visits: video visits. According to a new report from the Prison Policy Initiative (PPI), jails and prisons are increasingly relying on pay-per-minute video visits and, tragically, often shutting down in-person visits in lieu of the video option. As PPI says, this format may have advantages for people incarcerated far away from their families. This happens all the time, in small states that don’t have room for prisons and large states where the “room” is often in rural areas far from the urban areas from which prisoners originate. Most prisoners from Hawaii, for example, live in private prisons in California, while many of Vermont’s prisoners are bussed to private facilities in Tennessee, and most people incarcerated in New York are in far-flung facilities as many as eight hours from New York City.

Having the option of a video visit, therefore, can be a great alternative when traveling to see a loved one regularly isn’t feasible. On the other hand, the technology is often sub-par, resulting in poor picture quality or unreliable connections. Video visits are typically pay-per-minute, making them potentially very expensive (and profitable for the private companies that sell the service). And although in-person visit conditions vary widely, it’s heartbreaking to me to imagine replacing the format I witnessed at Otisville – incarcerated fathers reading stories to children on their laps, families wrapping their arms around each other for the camera, a quiet game of cards between father and son, etc. – replaced with a computer screen. Prisons are isolating as it is, and visits with family and friends might be the only source of physical touch, of prolonged eye contact, of letting your guard down for a few hours, that someone on the inside gets. Visits are important. Let’s not let them go.

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