American Exceptionalism And Political Violence

Adam Shatz offers some interesting thoughts on dreaming of political violence in the Age of Trump-Bannon:

It’s notable how easily violent thoughts have come to those of us who have known only a single, and much contested, month of the Trump-Bannon era. American exceptionalism may be dead, but it lives on as a habit of mind…in the unprecedented horror we imagine ourselves to be experiencing….It might be useful to think about these fantasies in wider terms, as a way of trying to understand the citizens of other countries, particularly those whom Americans have for the most part refused to sympathise with. We might try, for example, to understand why Palestinians have carried out violent attacks against the people who have occupied them for…half a century. They have been under military rule, without recourse to elections or a fair legal system, much less citizenship, for roughly 600 times as long as we have been under Trump.

Indeed. And we would do well too, to look inwards and closer as well, at the state of communities that have already, for ages now, suffered the kind of political and legal regime we imagine the Trump-Bannon era to resemble. The crisis of mass incarceration and the systematic evisceration of the US Constitution that it has both relied upon and facilitated provides the grimmest reminder that arbitrary search and seizure, detention, arrest, show trials, and cruel prison sentences are already the norm for some American citizens. Innocents make plea deals that send them to jail for years; families are torn asunder; no one reading the formidable corpus of literature on America’s prison and penal system, or the manifestos issued by Black Lives Matter, would imagine that much worse could happen to a black American in the Trump-Bannon era. The heavy-handed knock on the door in the middle of the night at the end of which a young man goes missing, and sometimes ends up dead in police custody? Been there, done that. The road-stop followed by the gunshot, which leaves an unarmed man dead? Been there, done that too. The ACLU received $24 million in donations in the weekend following the issuing of the disastrous ‘Muslim ban’ Trump executive order; it certainly could have used some of those dollars in holding the tide against the assault on the Constitution that drug warriors have been mounting for close to over three decades now.

Why, again, would such an openly declared war not provoke fantasies of violence? America is lucky, very lucky, that the millions of guns floating around in its cities and suburbs have not yet been turned against the armed constabularies who, on the pretext of conducting a War on Drugs, have felt free to promiscuously wage war against entire demographics instead.

The Trump-Bannon era calls for resistance, and resisted it will be. But let us not imagine that this era is exceptional, that the political and legal crisis it showcases is. To do so would be to lapse all too easily to facile self-congratulation, and to let the real work remain undone.

That Sneaky Cur, The Defense Lawyer

A quick quiz: When you think of phrases like ‘all lawyers are liars,’ ‘the law is an ass,’ ‘first thing we do, let’s kill all the lawyers,’ what vision of miscarriages of justice come to mind? Do you think of the innocent being deemed guilty, or do you think of the guilty getting off scot-free? Let me venture a guess: it’s the latter. Moreover, I would also surmise that the kind of lawyer you have in mind when these images of law present themselves is a very particular one: the defense lawyer. A sneaky, unethical, slimy, conniving, opportunist who represents the reprehensible, who puts his morals on hold and sallies forth to defend the indefensible, looking for loopholes in the law through which his client may wriggle, away from the grasp of the law and the virtuous society which seeks to prosecute him. Isn’t that really the worst kind of lawyer? The defense lawyers? You know, the ones who defend the ‘guilty’?

We have plenty of cultural representations to thank for this image of the defense lawyer. (I was reminded of this all over again as I sat through the second season of Broadchurch; in the last episode, the assistant prosecutor makes sure to tell the eager assistant defense attorney that she is a ‘horrible person;’ the series makers have done their best till then to drive us to the same conclusion; she is, after all, shown to be the master of the dirty trick, anything to get her client, a murdering pedophile, off the hook.) Remember the phrase ‘all lawyered up’ made so popular by one police and homicide procedural after another? Apparently, policemen and judges and detectives just want to do their work, but those pesky defense attorneys get in the way.

These are strange representations to deal with in a country engaged in the process of a gigantic human rights violation called ‘mass incarceration.’ Here, prosecutors engage all too often in gross misconduct, piling up charge after charge on their initial indictments, which they will then drop down to force accused into plea deals for lesser sentences, thus often forcing the innocent to choose jail time. They strike us as even stranger when we consider that the hardest working species of lawyer is the public defense attorney: overworked and underpaid, staggering under a caseload that would bring the most ardent workaholic to his knees.

This state of affairs is entirely unsurprising. We are a very self-righteous species, blessed with a sense of our own rectitude and of the guilt of others; our insecurity in the former dimension makes us lash out in the latter; our theories of punishment are infected with petty, vicious, vindictiveness. We suspect legal protections for the accused because we do not imagine ourselves ever needing them; they are there merely as smokescreens and obfuscations of the legal process. So those who employ them must be suspect too; they must be sophists and liars, manipulators employing deceitful sleight of hand maneuvers to pull the wool over our collective eyes.

Perhaps we should be more tolerant of the defense lawyer; perhaps we should not rush to judge them too quickly. Prudence bids us do so; we might need one someday.

Prisoners As Subjects Unworthy Of Moral Concern

The Intercept notes–in an essay by Alice Speri–that ‘deadly heat’ is killing prisoners in US prisons, that state governments would much rather spend money on legal fees than on installing air conditioning. In one egregious instance, Louisiana spent one million on legal fees to avoid spending $225,000 on AC. As the secretary of the Louisiana Department of Public Safety and Corrections Jimmy LeBlanc put it to the Associated Press in June, installing air conditioning at Angola would open a “Pandora’s box.” and that his “biggest concern is the impact on the whole system and the cost.” As George Gale noted in response (in a comment on my Facebook page), “I suspect what he actually means is “The public would crucify us if we air conditioned prisoners!”

Indeed.

Not too long ago. I made the mistake of reading the comments section in an online article about Orange is the New Black. There, many commentators expressed anger and dismay over the treatment of prisoners that was depicted in the show. Unfortunately, their anger and dismay was directed at the coddling that the inmates seemed to receive behind bars: They watch television! They walk around in the prison yard! They get their hair done! They had a store where they could buy stuff! One commentator finally went right ahead and said it “These women have a better life than I do.” There was something pathetic about that claim, something that spoke to just how onerous she imagined her life to be if it could be compared to that of a prisoner locked up behind bars. (This is not to say that many living outside of prison do not have qualitatively worse lives than they would have inside but I do not think this person, with an internet connection and the time to read and comment on an article about a television show, was one of them.)

Somewhere in the retributivist argument that many folks employ, the following premise is smuggled in:

If you commit a crime, and are convicted of doing so, you thereby lose all and claims to any civil, constitutional, and human rights. Indeed, you cease being a human deserving of any sort of considerate treatment. You are, after all, a convicted criminal.

It will be noticed that in this case ‘convicted criminal’ has come to mean ‘degenerate sub-human lacking those vital features which make him or her a worthy subject of moral concern.’ It’s not an eye for a eye but rather body and soul for an eye. (It should be remembered that the ‘eye for an eye’ formulation includes proportionality in its claim.) As a result, it is not enough that prisoners are denied their freedom and choice, restricted to particular spaces, told when to wake up, go to sleep, put the lights out, exercise, served particular food items and not other (with some concessions made for dietary constraints), and subjected to–among many arbitrary exercises of power–violence and sexual assault from guards and other inmates. No matter. They deserve it, they asked for it, they got what was coming, if you can’t do the time don’t do the crime, they should have thought about this before they committed the crime: the list of stern platitudes directed at convicts is never-ending, a grand testimonial to the smugness and complacency and small-mindedness of those of us on the ‘outside’ who have lost our capacity for empathy, who imagine that the strong arm of the law will never be lowered on them, who imagine that when they make a mistake, the benevolence and forgiving that has been so carefully hidden away by the world so that it can better deal with its convicts will suddenly be directed at them. It won’t; to encourage vindictive and cruel retribution directed at others is to set up a store for oneself too.

Orange Is The New Black And The Privatization of Prisons

Spoilers Ahead. 

Orange is The New Black has attracted–not unjustifiedly–some flak for its powerful and painful fourth season: it has been accused of being ‘trauma porn for white people,’ and of having ‘failed the Dominican community.’ Still, the show has provided some powerful drama in those thirteen episodes, largely by throwing off any pretensions that were hoisted on it of being a ‘funny’ or ‘comedic’ look at what happens behind the walls of a modern prison, and by concentrating on those issues that are too often the stuff of contemporary headlines pertaining to mass incarceration: the privatized prison-industrial complex, the brutality of poorly trained prison guards and correctional officers, racism, violence, sexual abuse and assault, criminal activity behind bars, drug abuse, the complicated social dynamics of prisoner groups, prison protests, deaths in custody, and so on. (Orange is the New Black is set in a women’s prison, so these issues receive an interestingly different treatment because of its inclusion–even if incompletely, and often crudely–of the perspectives of lesbians and women of color. Despite its increasingly serious tone. the show retains its witty edge because of its sharp writing and because of the comedic talent of many of its actors.)

In the many indictments the show levels at our society, one stands out pretty clearly: the privatization of prisons, the transformation of incarceration into industrial endeavor. The show’s narrative and rhetorical arc in the third season was radically altered by its choice to concentrate on the privatization of Litchfield, and not coincidentally, that is precisely when the show took on its darker tone. The predominance of the economic bottom line, and the casual cruelty and indifference to human interests it brought in its wake ensured that change pretty quickly. Interestingly enough insofar as any sort of alliance between the various warring factions among the inmates ever emerges, it is in reaction to the lowering of the corporate boom on their heads: if prison administration was uncaring and callous before, then the new dollars-and-cents mentality is even more grim, ever more removed from the realities of their lives, one that demands, finally, even if only temporarily, the putting aside of differences.

As Orange is the New Black makes quite clear in its treatment of the death of Poussey–the show’s most traumatic moment thus far, the one that finally pushed it over the edge, and made clear the it was not in Kansas anymore–an innocent human being died as a result of the decisions made by those, and there were many, who chose to imprison her and her fellow inmates in the way they did. The overcrowding at Litchfield, the use of untrained guards, the tolerance of their brutality, the systematic, cruel, ignorance and indifference of corporate managers; they all applied that fatal pressure to Poussey’s windpipe; she died because a system’s weaknesses became too much for her to bear. As they have for all too many in real life. If Orange is the New Black can help us pay more attention to their fates, and to the actions that are required to ensure they are not repeated, it will have, despite some well-deserved criticism, done its part.

Mass Incarceration And The ‘Overfederalization’ Of Crime

America’s mass incarceration is the bastard child of many. Among them: racism, the War on Drugs (itself a racist business), the evisceration of the Constitution through ideological interpretive strategies, prosecutorial misconduct, police brutality, and so on. Yet other culprits may be found elsewhere, in other precincts of the legal and political infrastructure of the nation.

In ‘The Balance of Power Between The Federal Government and the States’ (in: Alan Brinkley, Nelson W. Polsby, Kathleen M. Sullivan eds., New Federalist Papers: Essays in Defense of the Constitution, WW. Norton, New York, 1997), Kathleen M. Sullivan writes:

[T]here may be reason for the courts to draw outer limits to federal power when the structural, political, and cultural safeguards of federalism break down and the federal government encroaches needlessly upon areas traditionally and sensibly regulated by the states. The worst example in our recent politics is the overfederalization of crime. The Constitution names only three crimes: counterfeiting coins or securities, piracy on the high seas, and treason. But Congress has created more than three thousand federal crimes under the power to regulate interstate commerce. There are many crimes that should be federal, such as bombing federal buildings or sending explosives through the mail. But should it also be a federal crime to grow marijuana at home or to hijack a car around the corner? Federal crimes have proliferated not because it is good crime policy but because it is good politics: as Chief Justice Rehnquist has observed, “the political combination of creating a federal offense and attaching a mandatory minimum sentence has become a veritable siren song for Congress,” loud enough to drown out any careful consideration of the comparative advantages of state and federal crime control.

Shifting crime control from the states to the federal government in purely local cases diverts the work of federal investigators, prosecutors, and judges from areas of greater federal need. It also fills federal prisons with non-violent and first-time offenders who occupy space that could better be used for violent, career criminals whose operations cross state lines. There is no reason why the new federal crimes may not be handled by the states, as they have been traditionally, unless they involve multistate enterprises or intrastate enterprises so vast as to overwhelm the resources of state authorities.

The federalization of a particular crime acts as a ‘promotion’ of sorts: it elevates the perceived undesirability and dangerousness of the crime; it thus clears the way for harsher sentencing. As Rehnquist’s remark above suggests, the legal system’s response to a particular crime may be viewed as qualitatively and quantitatively inferior till the time it federalizes it and adds a harsh minimum sentence; only such a combination will assuage the retributivist impulse that so seems to animate the punishment policies of our penal system. Moreover, the current state of affairs lends itself to a situation where a conservatively inclined Supreme Court could, under the guise of tilting this balance of power back to the states, strike down progressive legislation. As Martin Garbus noted in Courting Disaster: The Supreme Court and the Unmaking of American Law (Henry Holt, New York, 2002, pp. 128-130) the Supreme Court struck down, precisely as part of an ideological anti-federalist strategy, in United States vs. Lopez“the first United States Supreme Court case since the New Deal to set limits to Congress’s power under the Commerce Clause of the United States Constitution“, an act of Congress criminalizing possession of a handgun at school.

The Supreme Court’s Commerce clause rulings helped unite the nation, but as the history of mass incarceration shows, it has helped create a nation within a nation too, one locked up and discriminated against for life.

 

Angela Davis On Reparation, Reconciliation, And Prison Abolition

In Are Prisons Obsolete? (Seven Stories Press, New York, 2003, pp. 106) Angela Davis writes:

It is true that if we focus myopically on the existing system–and perhaps this is the problem that leads to the assumption that imprisonment is the only alternative to death–it is very hard to imagine a structurally similar system capable of handling such a vast population of lawbreakers. If, however, we shift our attention from the prison, perceived as an isolated institution, to the set of relationships that comprise the prison industrial complex, it may be easier to think about alternatives. In other words, a more complicated framework may yield more options than if we simply attempt to discover a single substitute for the prison system. The first step, then, would be to let go of the desire to discover one single alternative system of punishment that would occupy the same footprint as the prison system.

There are several, by now familiar, components to such reform then. Among others: decriminalizing some activities currently deemed illegal (ending the ‘War on Drugs’ would be an exceedingly good start); reviewing and revising sentencing guidelines (and investigating racial disparities in sentencing); increasing oversight and monitoring of penal facilities to diminish abuses like assault and rape within its confines; restoring the rehabilitative and reformatory capacities of prisons by facilitating the education of inmates; etc.

Yet others call for more radical reconceptualization in the direction of “a justice system based on reparation and reconciliation rather than retribution and vengeance.” In the reparative dimension Davis cites the work of the Dutch criminologist Herman Bianchi whose work on restorative justice includes suggestions that “crime needs to be defined in terms of tort” i.e., turning it into an offence against a person rather than the state, and thus replacing imprisonment with other impositions that would attempt to make good the harm done to the victim. In the dimension of reconciliation, Davis recounts the powerful and moving story of Amy Biehl, who was murdered by young South African men in Capetown in 1993. (Biehl’s killers apologized to her parents during the review of their amnesty petition to the Truth and Reconciliation Commission; later, her family reconciled with two of the killers–Easy Nofemela and Ntoboko Peni–and even employed them in administrative positions in their memorial Amy Biehl Foundation.)

Implicit in such discussion of reform are, of course, a set of questions pertaining to punishment, revisiting which is an essential step to this process: Why does a social group punish? How does it select those it punishes? What punishment is suitable and appropriate for a particular crime? It is in exploring the space of possible answers to these questions that a society’s most fundamental presumptions about punishment, morality, and justice will be made visible; and it is in exploring alternative answers to the ones currently given that more creative opportunities for reform will present themselves. These opportunities to explore and evaluate alternatives will only be possible, of course, if those who intend to reform heed Peter Biehl’s words, that “sometimes it pays to shut up and listen to what other people have to say, to ask: ‘Why do these terrible things happen? ‘ instead of simply reacting.”

Kathryn Schulz’s Confused Take On The Steven Avery Case

In a rather confused take on the Steven Avery case–the subject of the Netflix documentary Making a Murderer, Kathryn Schultz of the New Yorker writes:

“Making a Murderer” raises serious and credible allegations of police and prosecutorial misconduct in the trials of Steven Avery and Brendan Dassey. It also implies that that misconduct was malicious. That could be true; vindictive prosecutions have happened in our justice system before and they will happen again. But the vast majority of misconduct by law enforcement is motivated not by spite but by the belief that the end justifies the means—that it is fine to play fast and loose with the facts if doing so will put a dangerous criminal behind bars.

Pardon me, but the belief that the end justifies the means, which then prompts egregiously immoral actions–like the kind so clearly on display in Making a Murderer, is spiteful and malicious; it leads to actions that trample over all and any that get in the way of the particular end being realized. In the Steven Avery case, that belief–a rule for action–is spiteful because it disregards the moral and professional standards that are supposed to govern the conduct of law enforcement activity. I don’t mean to give Schulz a little lesson in moral philosophy but acting on the basis that the end justifies the means, which can mean treating a person as not a person–you know, one deserving to be treated as innocent until guilty–is a spectacular moral failure. It treats a person–like Brendan Dassey, abused in order to produce a coerced confession–as a means to an end, the kind of moral catastrophe Kant warned against.

Moreover, given Schultz’s apparent passion for the truth and for empirical assessments of the claims of investigative journalism, what does she base such a perception of law enforcement on? It cannot be the vast literature on prosecutorial misconduct or the racist system of mass incarceration which is this nation’s greatest current moral failure. Or is she simply taking law enforcement’s claims at face value? Still, it is nice to see a journalist sticking up for the side with the power to ruin innocent people’s lives. Those folks really don’t get enough positive press.

Ricciardi and Demos instead stack the deck to support their case for Avery, and, as a result, wind up mirroring the entity that they are trying to discredit.

Schultz imagines that journalism needs to be governed by the ‘both sides are equally culpable’ rule. But that is precisely not what journalism is supposed to be about. The best journalism is always partisan, a case often made quite eloquently by Glenn Greenwald (here is the most recent instance.) Moreover, most importantly, in the Avery case, plenty of supposed evidence against him was presented–he is in jail, after all. Perhaps someone should present Avery’s side of the story and concentrate on that so that the full dimensions of the tragedy at play can be brought out–rather than have it obfuscated once again by the considerations that led to his conviction in the first place.

Schulz is confused about both the issues that are supposedly the focus of her essay: the morality of ends-justifies-means behavior and the standards governing investigative journalism.