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“Ceding To The Language Of Reform”: The Senate’s Bipartisan Criminal Justice Reform Bill Only Tackles Half The Problem

Determination to “do something” about the issue of mass incarceration has, at last, moved from the academic and activist worlds into the halls of Congress: At the beginning of October, a bipartisan coalition of Senators, including Chuck Grassley, Dick Durbin, Cory Booker, John Cornyn, and Tim Scott, unveiled a criminal-justice-reform plan. Whether that “something” they’re doing is commensurate to the scale of the problem, though, depends on the terms of the debate.

So far, the growing cost of imprisonment and the injustice of long prison sentences for nonviolent offenders have been the centerpieces of conversations about reform. But if that is all the criminal-justice reformers focus on, the “something” that gets done about the United States’ prison problem will fail to address the root causes of the explosion in the incarcerated population that has occurred over the past 40 years.

The Sentencing Reform and Corrections Act, as it is currently known, reduces mandatory minimum sentences for some nonviolent drug offenders, replaces life sentences for “three strikes” violations with 25 years, provides judges more discretion in sentencing low-level drug offenders, mostly ends solitary confinement for juveniles, and funds reentry programs, among other reforms. The bill is expected to pass in the Senate, be supported in the House (which introduced its own reform bill earlier this year), and ultimately be signed into law by President Obama.

In the immediate future, it will mean shorter sentences for some nonviolent drug offenders in federal prison; when applied retroactively, it will lead to the release of others. The prison population will shrink slightly, and the federal government will save a bit of money. But the United States will remain free to continue locking away millions of people.

Many reform advocates have praised the Senate proposal, and understandably so. Organizing around prisons and incarcerated people—those written off as the dregs of society—is tough, and any win is a welcome one, particularly one that will directly benefit people currently serving unjust sentences. “I spent 12 years behind bars because of mandatory minimum sentences in New York,” Tony Papa of Drug Policy Alliance said in a statement, “and I’ve been fighting to end them since my release in 1996. I’m proud to say DPA worked with members of Congress to reach this…historic deal. It’s a great step in the right direction.”

“But,” he added, “we must remember it is just a step.” These changes only affect federal sentencing guidelines and don’t end mandatory minimums (in fact, the bill imposes new minimums, on certain crimes related to domestic violence and gun possession or sale linked to terrorist activity). Despite such moderate reforms, it is being hailed as “historic,” “major,” and a “game changer.” Why? Because a true agenda for change has been ceded to the language of reform. The debate started and has effectively ended without considering the injustice of the very existence of prisons. We never considered abolition.

In a reply to Ta-Nehisi Coates’s Atlantic cover story “The Black Family in the Age of Mass Incarceration,” political scientist Marie Gottschalk calls for a “third Reconstruction.” She argues that any plan to reduce the prison population cannot focus only on those already incarcerated, but must include a massive investment program to ameliorate the conditions that produce the violence that leads to arrest and imprisonment. “If the US is serious about reducing high levels of concentrated violence,” Gottschalk writes, “then addressing the country’s high levels of inequality and concentrated poverty should become a top priority, not a public-policy afterthought.”

Gottschalk is using language that will be familiar to longtime Nation readers. It was at the onset of Bill Clinton’s presidency that historian Eric Foner made the case in these pages for a “third Reconstruction” to repair the damage of done during the Reagan/Bush era. The Reconstruction, of course, is the period after the end of the Civil War, when federal investment and military protection made it possible for the formerly enslaved to relocate, vote, run for office, start their own businesses, and begin the building of thriving communities. The second Reconstruction is considered to be the fruit of the civil-rights movement, which ended legalized segregation, implemented federal protections to ensure the right to vote, and led to the passage of the Fair Housing Act. Gottschalk sees room to invest in the sort of programs that would drastically reduce the crimes used as a pretext for mass incarceration. To her, the “only legitimate long-term solution to the crime crisis is another Reconstruction.”

But the language of “reconstruction” can’t be employed without considering what preceded it—abolition. We abolished the institution of slavery. We abolished legalized segregation. If we want a third Reconstruction to take place, the abolition of prisons should be on the table.

Abolition makes sense, though, only if we see prisons as a site of injustice in and of themselves. And they are—not only because of the violence of rape and murder that exists within prison walls, the psychological damage, the lack of educational opportunities, and the denial of due process that locks up innocent people. Prison is the means by which we tell ourselves we are dealing with our societal ills, but only creating more. Prison makes us lazy thinkers, hungry for revenge instead of justice. Prison is a violent representation of our failure to fight inequality at all levels. In abolishing prison, we force ourselves to answer the difficult question: How do we provide safety and security for all people?

Abolition will not win right now. But an abolitionist framework for crafting reforms would lead to more substantial changes in the US prison system. An abolitionist framework makes us consider not only reducing mandatory minimums but eliminating them altogether. An abolitionist framework would call for us to decriminalize possession and sale of drugs. Abolition would end the death penalty and life sentences, and push the maximum number of years that can be served for any offense down to ten years, at most.

With these reforms in place, we as a society would have a huge incentive to rehabilitate those in prison, and we would ensure the incarcerated are capable of socialization when they are released. And without being able to depend on prison as a site of retribution, we would have to find new ways to address things like gender-based violence, sexual assault, and domestic violence. And we could then start making the kinds of investments in alleviating poverty that Gottschalk calls for.

But we can’t do that so long as prison exists as a fail-safe. Abolition may not win today, but neither did it win when it was first introduced as solution for slavery or segregation. So long as we allow the terms of the debate to be shaped by what is politically possible, we’ll only ever be taking tiny steps and calling them major.

 

By: Mychal Denzel Smith, The Nation, October 14, 2015

October 18, 2015 Posted by | Congress, Criminal Justice System, Mass Incarceration | , , , , , , , | Leave a comment

“The Police Don’t Always Tell The Truth”: The Killing Of Walter Scott Sheds Light On The Problem Of Police Lying

Yesterday The New York Times published a video showing a police officer, Michael T. Slager, fatally shooting a black man, Walter L. Scott, as he ran away from the officer.

The video is disturbing enough by itself. But it becomes even more troubling when we consider how radically at odds the visual evidence seems to be with the police incident report filed on the killing. As the Times notes, Slager “said he had feared for his life because the man had taken his stun gun in a scuffle after a traffic stop on Saturday.” Yet the video shows Scott killed in flight, something like 20 feet away when the final bullet hit. After the shooting, Slager is shown placing an object next to Scott’s prone body. According to the Times, police reports also claim that officers performed CPR on Scott, an assertion not borne out in the video.

The death of Walter Scott will add more tinder to the already blazing political debate over police violence. The apparent contradictions between the incident report and the video highlight an overlapping but distinct problem: The police don’t always tell the truth. Police violence and police lying are two separate problems, although they also reinforce each other. Police violence flourishes in part because of the prevalence of police lying, which is rarely challenged by the criminal justice system.

In the Scott killing, there is good reason to believe that without the powerful counter-evidence provided by the video, which led to Slager being charged with murder yesterday, the police incident report would have been accepted as the official account of the shooting. Indeed, the persuasive power of police testimony extends outside official channels. Prior to the emergence of the video and Slager’s arrest, Slager’s version of events was echoed by the local media in South Carolina as if it were factual.

Police lying doesn’t just act as a shield for police violence, but as a larger source of corruption in the criminal justice system. Criminal cases are always narrative battles: Prosecutors and defense attorneys compete to win cases by presenting the most plausible stories consistent with admissible evidence. The police play a crucial part in this system as a supplier of narrative facts, in the form of both reports and testimony under oath.

As Ohio State law professor Michelle Alexander noted in a 2013 article in The New York Times, there is a powerful social presumption that we should put our faith in cops. “As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but?” Alexander said that this abiding faith in the police is misplaced: “In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.”

Alexander’s contention rests on a strong scholarly literature about “testilying”—the practice of police officers committing perjury to secure a conviction, usually against someone they think is guilty. In a classic 1996 article for the Colorado Law Review, Vanderbilt Law professor Christopher Slobogin demonstrated that both “reportilying” (falsifying police reports) and “testilying” are pervasive in many American jurisdictions.

Police perjury, Slobogin argues, occurs because “police think they can get away with it. Police are seldom made to pay for their lying.” Not just prosecutors but even many judges see themselves as sharing a common set of goals with the police of making sure the guilty get punished. Working in a shared enterprise, they are loath to challenge police perjury. “Prosecutors put up with perjury because they need a good working relationship with the police to make their cases,” Slobogin notes.

Slobogin documented his case by citing a compelling 1992 study by Myron Orfield of the Chicago criminal justice system showing that a large percentage of judges, prosecutors, and defense attorneys acknowledge the reality of police perjury: “In his survey of these three groups (which together comprised 27 to 41 individuals, depending on the question), 52 percent believed that at least ‘half of the time’ the prosecutor ‘knows or has reason to know’ that police fabricate evidence at suppression hearings, and 93 percent, including 89 percent of the prosecutors, stated that prosecutors had such knowledge of perjury ‘at least some of the time.’”

If officer Slager did fabricate his incident report in the Scott killing, he wasn’t being a bad apple but rather adhering to a dishonesty that is all too common in American police forces. Such is the credence given to police reporting that Slager’s rendition of events was only overturned by the compelling counter-narrative offered by the video, shot by a civilian onlooker.

Videos, including police body cameras, are not a panacea to the problem of police violence. The 1992 Rodney King trial alone should remind us that compelling visual testimony can be overridden by the social trust many jurors give to police. Still, in a society where both the state and many citizens are too credulous about police testimony, videos are often the best way to break the stranglehold of the official narrative.

 

By: Jeet Heer, Senior Editor, The New Republic, April 9, 2015

April 10, 2015 Posted by | Criminal Justice System, Police Shootings, Police Shotings | , , , , , , , | Leave a comment

“Crime-For-Profit Syndicates”: Why Are We Taxpayers Subsidizing Corporate Crime?

“Do the crime, do the time,” the old saying goes. Unless, of course, the criminals are corporate executives. In those cases, the culprits are practically always given a “Get out of jail free” card.

Even the corporate crimes that produce horrible injuries, illnesses, death, massive pollution, consumer ripoffs, etc. are routinely settled by fines and payoffs from the corporate treasury, with no punishment of the honchos who oversee what amount to crime-for-profit syndicates. The only bit of justice in these money settlements is that some of them have become quite large, with multibillion-dollar “punitive damages” meant to deter the perpetrators from doing it again. Yet the same bad corporate actors seem to keep at it.

What’s going on here is a game of winkin’ ‘n’ noddin’, in which corporate criminals know that those headline-grabbing assessments for damages they’ve caused have a secret escape hatch built into them. Congress has generously written the law so corporations can deduct much of their punitive payments from their income taxes! As Senator Pat Leahy points out, “This tax loophole allows corporations to wreak havoc and then write it off as a cost of doing business.”

For example, oil giant BP certainly wreaked havoc with its careless oil rig explosion in 2010, killing 11 workers, deeply contaminating the Gulf of Mexico and devastating the livelihoods of millions of people along the Gulf coast. So, BP was socked with a punishing payout topping $42 billion. But — shhhh — 80 percent of that was eligible for a tax deduction, a little fact that’s been effectively covered up by the bosses and politicians.

This crazy quirk in America’s laws to deter corporate crime forces victims to help subsidize criminals. Follow the bouncing ball here: First, a court orders a corporation to pay punitive damages to a victim of its criminal acts; second, the corporate offender pays up, and then merrily subtracts a big chunk of that payment from its income tax, effectively taking money out of our public treasury; third, while the criminal is counting its tax break, the victim is notified that the punitive damage money he or she received from the corporation will be taxed as “regular income;” fourth, that means a big chunk of the victim’s payment goes into the treasury to replenish the public money the corporate villain subtracted.

This is nothing but shameful pandering by government officials to rich and powerful criminals. It’s bad enough that corporate-financed lawmakers legalize such encouragement of criminality, but corporate-coddling judges are playing the same disgraceful game — drastically reducing the amounts that juries order corporations to pay. In a Montana case, for example, a jury awarded $240 million in punitive damages to the families of three people, including two teenagers, killed in a car crash. The deaths were blamed on a steering defect that South Korean automaker Hyundai was found to have known about and “recklessly” ignored for more than a decade. But a district judge has since supplanted the jury’s ruling with her own. While declaring that Hyundai’s “reprehensibility” certainly warrants a sizeable punishment, she cut the corporation’s punitive payment down to $73 million.

Hello — that’s not punishment to a $79-billion-a-year car giant, it’s pocket change. Why would Hyundai executives quit putting corporate profits over people’s lives if that’s their “punishment”?

Plus, we taxpayers and the victims’ families are still lined up to subsidize whatever “punishment” Hyundai ultimately pays. With subsidies and wrist-slaps, the corporate criminal whirligig will continue to spin, making a mockery of justice. Fortunately, Senator Leahy has had the good sense to introduce legislation to lock down this escape hatch for thieves, killers and other executive-suite villains. For more information on the moral outrage of ordinary taxpayers being forced to subsidize corporate criminals, contact U.S. PIRG at http://www.uspirg.org.

 

By: Jim Hightower, The National Memo, March 11, 2015

March 11, 2015 Posted by | Congress, Corporate Crime, Corporations | , , , , , , | Leave a comment

“After Voter Suppression”: Focusing The Nation’s Attention On The Magnitude Of The Problem

So much has happened in so many parts of the judicial system regarding Voter ID and other recent efforts to restrict the franchise that it’s hard to get a fix on the big picture. But at the New Yorker, Jeffrey Toobin has seen the future of SCOTUS action on voting rights in its rulings on Wisconsin (halting implementation on grounds of timing) and Texas (giving that state the green light) Voter ID laws, and it’s not good:

The Wisconsin and Texas rulings were just preliminary requests for emergency relief, and the Supreme Court may yet hear the cases in full on the merits. But there seems little chance that a majority of the current Court will rein in these changes in any significant way. In courtrooms around the country, it’s been made clear that these Republican initiatives have been designed and implemented to disenfranchise Democrats (again, usually of color). But the Supreme Court doesn’t care.

So Toobin thinks it’s time to make a mental adjustment back to the mid-1960s, when hostile state laws and practices on voting were overwhelmed by the sheer moral and physical presence of people exercising the rights they still had and participating in elections whatever the difficulty:

Certainly, the obstacles for voters in the contemporary South do not compare to those that the civil-rights pioneers, black and white, faced until the early nineteen-sixties. In the Freedom Summer of 1964, the still nascent civil-rights movement coalesced around an effort to register voters in Mississippi. It was during that summer that the infamous murders of the civil-rights workers James Chaney, Andrew Goodman, and Michael Schwerner took place. In addition, of course, black Mississippi residents endured less well-known but equally horrific abuse from state authorities during this time. In those days before the Voting Rights Act, the effort did not succeed in registering great numbers of voters, but it did focus the nation’s attention on the magnitude of the problem.

So it could today. In light of the changes in the state laws, it’s difficult but not impossible to register voters and make sure that they get to cast their ballots. And it’s absolutely mandatory in a democracy for that to be done.

The title of Toobin’s essay is “Freedom Summer, 2015.” It’s sobering to realize that’s what we may need to restore voting rights long thought to be relatively secure. But it’s also a reminder that reactionaries who fear democracy (not just judicial conservatives, but the Con Cons who think “losers” have forfeited the right to have any say in what “winners” do with their money and power) have been defeated before in more extreme circumstances.

 

By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, October 28, 2014

November 3, 2014 Posted by | Democracy, Voter Suppression, Voting Rights | , , , , , , | Leave a comment

   

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