Tag Archives: activism

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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Mass Incarceration is a Symptom, not a Disease

Thank you to the Prison Policy Initiative for wrangling many different data sources for this comprehensive view.

The scope of incarceration in the U.S. is just one of the defining features of mass incarceration. That may seem counterintuitive. After all, the scale of the U.S. system is what makes it so infamous. It’s impossible to pick up a book about prisons in America without being quoted some relevant stats in the first handful of pages (we lead the world in incarceration rate, we have 5% of the world’s population but 25% of the world’s prison population, our incarceration rate has grown 500% in forty years). All of this is true and important, and – bonus! – tends to freak out even the most punitively minded audience.

But it also should be treated as a sign of a problem, not as the extent of it. In my post about Ferguson yesterday, I argued that the dystopian horror story of a criminal justice system that they’ve got down there, with more outstanding charges than citizens, was a predictable outcome of unbridled discretion handed to police officers and prosecutors (coupled with racism and classism, that is). Change may be effected in Ferguson as a result of protesting, federal investigation, and new leadership, but there’s more where Ferguson came from. Similarly, treating mass incarceration as the problem, rather than a very scary symptom of problems that we had before mass incarceration, is short-sighted and unlikely to produce lasting change.

See my thoughts on the conservative “Right on Crime” movement tomorrow for more on this note.

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System overload: plea bargains vs. trial by jury

A recent NYT editorial by Michelle Alexander, civil rights lawyer and author of The New Jim Crowe, posits a striking question: What would happen if everyone who was charged with a crime actually exercised their right to a trial by jury?

If you grew up watching Matlock as much as I did, you might think jury trials are fairly common. Unfortunately, the vast majority of the accused take plea bargains; more than ninety percent of criminal cases never see a jury trial. Thus the amount of resources that would be required for all alleged offenders to receive jury trials far exceeds what is currently available at the state or federal level.

The answer to that question, then, is this: Chaos would ensue. Alexander writes:

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

So why do the accused so often take pleas? Haven’t we all been raised with the ideal that a jury of one’s peers is the highest standard of justice available in a democracy? Don’t we know that the burden of proof is with the prosecution, making it possible that even a guilty person could walk away unscathed from a jury trial?

The truth is, most people can’t afford a lawyer who will be able to spend any significant time or energy on them. They probably know little to nothing about the criminal justice system, and – particularly if they’re Black or undocumented – most of what they do know is more likely to instill fear or distrust than idealism or faith. So when they’re told (usually by their own defense lawyer) that a plea bargain is their best bet, that even if they’re innocent they’ll likely be convicted and given a much harsher sentence if the case goes to trial, many people feel powerless to challenge that.

And for a lot of folks, a plea bargain really is a good thing in some ways. Especially if the person is guilty of the offense, they often receive shorter sentences or probation from a plea bargain, and really can go home sooner. If they’re worried about what’s happening to their kids, for example, or just scared shitless by living in jail, many people will take the plea bargain first and ask questions later.

But once at home, secondary forms of punishment abound. Particularly for people convicted of drug offenses, public benefits like subsidized housing and food stamps are frequently revoked. Conviction records make finding jobs more difficult, and can result in people losing custody of their children. And if the person is convicted of another crime, the sentence could be much harsher as a result of the earlier conviction.

People who demand a trial by jury experience a longer waiting and trial period, and some probably do receive harsher sentences than the plea bargain would have offered. But many do not. And if the number of people who exercised their sixth amendment rights merely doubled, it would be enough to bring the current system to a crashing halt and require our country to seriously consider the way we lock people up.

It’s pretty depressing that simply utilizing our rights would so drastically disrupt today’s justice system. It’s also pretty exciting to think that the people who are often treated as the least powerful players in the criminal justice system have a very powerful resource at their disposal. That’s something to think about.

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