Abolish Prisons

A police officer who shot and killed 50-year-old Walter L. Scott as he ran away on Saturday has been charged with murder. Charges were brought after video surfaced of Scott running away from the officer, Michael T. Slager, who stands his ground and fires eight shots until the last one hits home.

The rest of the video captures an eery scene: Slager demands several times that his victim “put [his] hands behind his back,” and cuffs him, despite the fact that Scott has not moved since falling to the ground. It shows what appears to be Slager planting evidence of a struggle as he drops what looks like his taser next to Scott. Back-up arrives and requests a medical kit. Mr. Scott is still facedown, not moving. At one point Slager takes his pulse. Another couple of officers arrive, and one takes Slager aside to talk while the other two appear to be examining Scott’s injuries. Mr. Scott is still unmoving, and no one administers CPR, no one seemed alarmed, it doesn’t even look like anyone tries to talk to him.

When discussing violence that cops commit while “on the job,” it’s hard to resist the idea that these are stressful situations, you feel (rightly or not) that your life is threatened, who knows what someone will do in that circumstance? And it’s true, cops do have to brave dangers that most of us would never choose to confront (although for some people living in high crime areas or buildings is not an option but a necessity and we don’t give them medals).

But it’s also true that, statistically speaking, cops are better cops for white people than Black people. Same cops, responding to calls about the same crimes, exposed to all the same dangers, are just way, way less likely to kill white people than Black people “in the line of duty.” So while the challenge is real, it does not give anyone a pass to be selective about when to cave to it and when to do the right thing. (For police reform ideas from the experts, see this post from March.)

This situation, captured in video, is obviously not one in which it’s appropriate for an officer to use force (for someone who’s running away deadly force is only appropriate when they “pose a significant immediate threat of death or serious physical injury to the officer or others”). Miraculously, officials seem to have accepted that; North Charleston Mayer Keith Summey has said, “When you’re wrong, you’re wrong… And if you make a bad decision, don’t care if you’re behind the shield or just a citizen on the street, you have to live by that decision.”

But, as Michelle Alexander said, what if we didn’t have a video?

And of course, video isn’t always sufficient. As my very favorite Borowitz Report pointed out after a grand jury failed to indict officers for the death of Eric Garner (despite there being a video of his death), videos will be much more effective if we equip grand juries with eyes.

Congratulations to Dewey Bozella for his well deserved $7.5 million settlement agreement with Dutchess County (home of sunny Poughkeepsie). Bozella was convicted of the beating and suffocation of a 92-year-old woman on her way home from bingo (seriously). The Supreme Court of New York overturned his conviction in 2009, after finding that two witnesses had lied to get favorable treatment for their own crimes and that the prosecution had withheld evidence. Bozella spent 26 years in prison.

Justice, in my opinion, would involve making those prosecutors pay Mr. Bozella a hefty amount of money, rather than county taxpayers who – let’s face it – will be the ones footing this bill. But perhaps if other exonerees are successful, the public will start putting pressure on their district attorneys to follow the rules and convict people only if they’re guilty. Of course, the way public opinion goes prisoners and former prisoners are basically the only demographic with less credibility than the government, so New York will probably just go the way of states like Louisiana who cap what wrongfully incarcerated people can be awarded (in Louisiana, that cap is set at $150,000).

In this case, though, I’m thrilled that New York doesn’t have a cap. I’ve met Dewey and his wife Trena, and they are two of the nicest people you’ll ever meet. (They met through Trena’s brother, who was incarcerated with Dewey, and married while Dewey was in prison.) So, personally and politically, a hearty congratulations to Mr. and Mrs. Bozella, and to his attorney who took the case pro bono (which means that Dewey will receive the entire award).

The U.S. uses sex offender registries at dramatically higher rates than any other nation, with over 800,000 people currently listed; the six other countries that have registries list a combined total of 20,000 people. All fifty states have a registry, and sex offenders convicted of everything from public urination to statutory rape to child molestation are listed, along with their addresses, descriptions, employers, etc. They’re subject to federal laws banning them from living near schools and daycares, and many are also subject to municipal laws with much stricter limitations. This creates a de facto banishment from many densely populated areas, such as Brooklyn and Miami.

Check out this great, short NYT Op-Doc on one Florida community that has developed in the wake of sex offender residency restrictions, and look forward to more on these laws later this week.

Yesterday I mentioned that it would be great to hear more about cool things that incarcerated people are doing on the inside. I missed an op ed published in the New York Times by John J. Lennon, currently locked up at Attica. His article advocates for more educational opportunities in prisons, suggesting that MOOCs could be used to supplement traditional college programs that should also be expanded.

College programs in prisons are the best possible investment to reduce recidivism, as well as violence on the inside. But far more importantly, higher education is something that should be accessible to all who care to pursue it and who are able to complete the coursework.

As a liberal arts graduate and the daughter of two college professors and administrators, I’ve never believed (or been expected to believe) that the true value of higher education lies in the career prospects it affords (much less my ability to stay out of prison as a college grad). No one ever suggested that I should only go to college if it was a practical necessity, or that I should stop taking classes or pursuing a graduate degree if I couldn’t quantify marginal returns on the investment. The pursuit of knowledge, the project of exercising my mind and my voice, is something I’ve been raised to believe is fundamentally valuable and important. I’m sure that my experience is not universal to my socioeconomic class, but it’s far from unique.

I would bet that in Mr. Lennon’s world, few of the decision makers in state government or corrections believe that his education, and the education of his fellow prisoners, has the same kind of intrinsic value that mine has. Scarier yet, I personally witnessed a conference full of people running education-in-prison programs promote their work on the same state-interests platform that Governor Cuomo and prison officials use to justify the programs.

Why does it matter?

First, cost-based arguments are effective only insofar as people aren’t comfortable bearing the costs if education isn’t provided. It’s one thing to cave to opposition when you’ve made a statement about the cost-effectiveness of a program; it’s another thing entirely to say “this is about human dignity” and then back off. (In fact, New York’s Governor Cuomo did promote college-in-prison funding for cost-based reasons and did back off in the face of opposition.)

But more importantly, couching college-in-prison programs as cost-saving measures for some members of society and not others sends a frightening message: people like me should go to college to grow, to learn, to contribute to the world as a student and as a graduate. People like Mr. Lennon should be go to college to stay out of prison and stop being such a pain in the government’s ass.

This double standard is so widely applied that college-in-prison professors, sympathetic media (I’m looking at you, NYT), and other allies frequently fail to notice the distinction. But Mr. Lennon’s article effectively combats the notion that recidivism and crowd control are the only reasons to offer college classes in prison.

He describes a creative writing workshop that helped him recognize his “untapped talent.” But as he developed a passion for learning and pursued additional education, he came to understand the significance of his own mistakes: “I’ve realized that I deprived the man I killed of ever discovering his potential, his human essence,” Mr. Lennon writes. “I grapple with this shame.”

His college program has also allowed him to be a positive role model for his neighbor, Roberto Rivera. 

He asks about what I’m learning. So I tell him about the theories and concepts — Machiavellianism, Marxism, social Darwinism — that my cranky and brilliant instructor weaves through all of his lectures. I show Roberto my writing, pass him my subscriptions, sections of this newspaper, issues of The New Yorker and The Atlantic. I try to make education and intellect look cool. It seems to work.

Mr. Rivera is applying for the next available college class at Attica, but only 20 of the 2,300 prisoners at Attica will be enrolled, and 200 others are applying for the class. How sad if his growing curiosity, a curiosity that I’ve been able to capitalize on in college and in law school, is denied an outlet, tamped down, and perhaps extinguished.

Just a short post today to draw your attention to this nice profile of 11 formerly incarcerated people doing great work on the outside. I’m honored to say that one of the people featured, Mr. Marlon Peterson (pictured above), is a friend of mine.

On a side note, it strikes me that it’s about time someone did a profile of great work incarcerated people are doing on the inside – there are certainly plenty of examples. Maybe I’ll add that to my to-do list.

A transgender woman has the support of the Department of Justice in her fight to continue her hormone therapy. Ashley Diamond brought suit against the Georgia Department of Corrections in February because they refused to provide her with the female hormone therapy medications that she took for 17 years prior to incarceration. Prison officials have countered that she was not documented as transgender on prison intake forms, thus making her ineligible for the medication under their “freeze frame” policy, which allows incarcerated people to continue treatment but not to expand or initiate anything new.

Ms. Diamond’s complaint alleges that prison officials not only denied her hormone therapy, but also subjected her to “harassment and reprimand” for her failure to conform to male stereotypes, put her in solitary confinement for “pretending to be a woman,” and knowingly exposed her to “repeated, unspeakable sexual assaults.” Without her hormone therapy she’s been going through physical withdrawal while her body is “violently transformed” from a woman to a man.

The Department of Justice has weighed in with support, calling the “freeze frame” policies unconstitutional and arguing for independent assessments. The DOJ doesn’t have any official “say” here – they’re a federal body, and this is a state case. But of course their input is persuasive, and it also signals the general viewpoint of the office. On Friday, Attorney General Eric Holder (the head of the DOJ) described the movement for LGBTQ rights as a continuation of the civil rights movement.

Transgender people in prison suffer prejudice and violence not only at the hands of prison guards but also from fellow prisoners. Ms. Diamond’s case has the potential to create a crucial right for transgender prisoners, as does a different case that was favorably decided today for Michelle Lael-Norsworthy in California. A federal court granted Ms. Lael-Norsworthy the right to sexual reassignment surgery this morning, the first time a court has made such a ruling. I hope that the DOJ’s position and Ms. Lael-Norsworthy’s success in the Northern District of California are signs of a desperately needed culture shift in this arena.

The birth of mass incarceration is often tied to a rise in “tough on crime” rhetoric in the 60’s and 70’s that resulted in a “race to incarcerate” in which politicians competed to pass the harshest laws in a bid for political popularity. But where did “tough on crime” politics come from, and why were voters so enticed?

In The New Jim Crow, Michelle Alexander traces the rise of “law and order” discourse to white southern politicians during the Civil Rights Movement. This rhetoric was not only applied directly to those engaged in civil disobedience (framing protests and sit-ins as disruptive to “law and order”), but was also a useful proxy for explicit racism when a change in cultural norms effected by the Civil Rights Movement made old fashioned racism problematic. During the post-Civil Rights Era, the most vociferous promoters of tough on crime politics were conservatives. Liberals were typically sympathetic to the plight of prisoners and viewed people in prison as precisely that: people.

It was in the 1970s that tough on crime politics gained broad-based support. In Mass Incarceration on Trial, Jonathan Simon points to a rise in crime and a loss of faith in rehabilitation as two primary drivers for increased acceptance of the conservative message. He also points out that the image of the prisoner was changing, thanks to an increase in highly publicized, particularly violent crimes like serial murders, as well as two highly publicized rebellions within prisons: George Jackson’s at San Quentin and the Attica riot in New York. Although these uprisings were quickly quashed, the image of the prisoner as a “revolutionary terrorist,” invariably Black or brown, and posing a threat both inside and out of prison, continues to be trotted out to sell newspapers, win elections, or preserve prison jobs.

Was the new tough on crime rhetoric racism by another name?

Excluding upper class African Americans and sweeping in some poor whites reassured most people that the criminal justice system was targeting crime not race. But both history and the present tell us otherwise. The historical moment at which tough on crime politics gained wide support was also the moment when American whites faced the prospect of real sacrifice to make good on the promises of the Civil Rights Movement. Today, high levels of discretion in policing and prosecution have been used to create an unprecedentedly large prison population with massively disproportionate racial demographics within prisons that reflect neither the general population nor the offending population.

The particular brand of slavery that America created, lasting for life and extending to future generations, was born out of physical fear and fear of distribution of wealth. But it was also a difficult concept to justify as a “Christian nation.” Thus was born the notion of the less-than-human African laborer (much like the savage Indian). The idea that Blacks were a lesser species justified their loss of liberty, forced labor, physical and sexual abuse.

The same two fears – for physical safety and for loss of resources – fuel the prison system, a system that has, like slavery, persisted by dehumanizing those it controls. Two hundred years ago, slave owners framed their human property as intellectually inferior, inherently dangerous, and dependent on beneficent masters in order to justify a horrifically unjust system.

Today the same justifications have been reframed into a language about “law and order,” “career criminals,” and “public safety,” but because they’re somewhat more racially complicated, we’re missing the link. We need to recognize that connection, and confront our own biases, and think about the prison system the same way that, in retrospect, we’re able to think about slavery, lynching, Jim Crow laws, etc.: as a massive and urgent human rights problem that requires radical change.

Donald Bullock, a former testing coordinator, was led to a holding cell after conviction. Photo credit: NYT.

Eleven former educators in the Atlanta Public School District were convicted of racketeering today, a charge with a maximum penalty of 20 years in prison. The criminal enterprise that earned them this hard time? Fudging test scores to earn bonuses, or perhaps simply keep their jobs. It sounds like an April Fool’s joke (you know, if your sense of humor sucks), but it is not.

The charges were brought under Georgia’s edition of the Racketeer Influenced and Corrupt Organizations statute, more commonly known as “RICO.” RICO was passed in 1970 as a tool for going after mafia leadership, whose actions were often insulated behind many layers of foot soldiers (“button men,” as they say). It allows prosecutors to “stitch together crimes going back many years, from extortion and loan sharking to murder, in a single case.”

But why apply RICO here? Excerpts from the indictment make it clear that the DA hoped to take down the top leadership of the Atlanta Public Schools, Beverly Hall (named Superintendent of the Year in 2009, the year before controversy began to swirl). But despite reports of a sink-or-swim culture that put pressure on educators to fake testing success, but Hall was not tried because she was being treated for breast cancer at the time; she died on March 2nd. (Based on the charges for which she was indicted, she could’ve gotten up to 45 years in prison.)

I don’t really understand the vindictive attitude toward Hall who, after all, was put in a position to compete with other states for vital federal education funding thanks to testing-heavy federal education initiatives No Child Left Behind and Race to the Top. In fact, the allegation from the indictment that “[t]he refusal of Beverly Hall and her top administrators to accept anything other than satisfying targets created an environment where achieving the desired end result was more important than the students’ education” seems perfectly aligned with the expectations that federal programs have promoted. And the more ambiguous accusation that she created a “culture of fear” sounds to me many workplaces with tough bosses (anyone ever see The Apprentice?).

But the RICO convictions of teachers and administrators are even more concerning. Here’s how this happens:

• The government decides to investigate. And in this case, that’s a big decision: they’ve been working on this case for four years, and its scope is unprecedented for a cheating scandal. Two governors decided to pursue it aggressively. This worries me when the people they’re going after (or at least Hall and all the 11 people who were convicted today) are Black, and working in low-income neighborhoods.
• The district attorney decides to bring charges, decides who to charge, and decides which charges to bring. No one – not the governor, not judges, not defense attorneys, and certainly not defendants – has the right to question any of these decisions. In this case, the DA decided to bring RICO charges, as well as a variety of others.
• The DA also decides what kind of plea bargain to offer, and to whom. Defendants who are willing to testify against others are frequently offered generous plea deals; in this case 21 of the 35 indicted agreed to deals and received only probation.

“But wait,” you’re probably thinking, “probation?!?! But the 21 who plead guilty cheated, too! I thought we cared a lot about the cheating!”

You’re right. It’s screwed up. No matter how much you don’t want to plead guilty as a defendant, when the prosecutor says “plead and turn state’s witness to get probation or force a trial and roll the dice on 20 years,” it’s actually surprising that only 21/35 took the deal. And that’s no accident. Prosecutors lobby for more crimes on the books and longer sentences for precisely this reason. And when the government says something like “if you don’t plead guilty I’m going to throw the book at you,” and then you don’t plead guilty, guess what happens?

The Supreme Court is well aware that prosecutors use the prospect of extremely long sentences to pressure defendants into pleading guilty, and that sentences received at trial (a rarity, these days) are much higher than those doled out for the same crime when the defendant pleads guilty. Although this hardly meshes well with our sense of proportionality or equality under the law, there’s a vague notion tossed around that (a) saving the time/cost/energy of a trial, or (b) turning state’s witness mitigates the culpability of the underlying offense.

It’s not yet clear what the sentences will be for those 11 defendants who were found guilty of racketeering, but comparing anything in the neighborhood of 20 years with probation doesn’t comport well with my sense of justice.

On 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):

5.85 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 60–70% 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.