a bird and a bottle


SCOTUS will review the crack/cocaine disparity
June 12, 2007, 8:34 am
Filed under: civil rights, criminal justice, drug war, law, news

Interesting news from ACSBlog: The Supreme Court yesterday agreed to hear a case challenging the disparity between sentences for crack cocaine and those for powder cocaine. As I have discussedat length — the fact that crack possession is punished 100 times more harshly than cocaine possession is both nonsensical and racist (which might make it sensical to some, I guess).

Anyway, the Supreme Court will hear the case, Kimbrough v. U.S., in its next term after a nice long summer vacation. Kimbrough concerns a question of judges’ sentencing authority: does a judge have the power to sentence outside the 100-to-1 guidelines? SCOTUSBlog has a more full (and somewhat technical) explanation.

It’ll be interesting to see how this one comes out. It’s not just going to be a decision about drug war policies. Scalia has been surprisingly pro-defendant on sentencing, and Breyer supports giving judges more leeway. We could end up with a strange group in the majority and perhaps finally an end to one of the most overtly racist practices in today’s criminal justice system.

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Still Not An Endoresment…

I know you’re all waiting with baited breath, but I still haven’t decided whom – if anyone – to “endorse” going into the Democratic primary. It’s still early. I might. But not yet.

That said, damn Obama’s rhetoric works for me.

Andrew Sullivan’s got the full text of Obama’s recent speech (which Sullivan somewhat derisively though perhaps somewhat accurately calls a sermon) at Hampton University. Obama used the story of the shooting of a pregnant woman (in white, natch) during which the bullet lodged in the arm of the woman’s fetus. The fetus survives but has scar as a reminder.

The story makes my skin crawl a little. But what he does with it is damn good. There’s this:

And so God is asking us today to remember that miracle of that baby. And He is asking us to take that bullet out once more.

If we have more black men in prison than are in our colleges and universities, then it’s time to take the bullet out. If we have millions of people going to the emergency room for treatable illnesses like asthma; it’s time to take the bullet out. If too many of our kids don’t have health insurance; it’s time to take the bullet out. If we keep sending our kids to dilapidated school buildings, if we keep fighting this war in Iraq, a war that never should have been authorized and waged, a war that’s costing us $275 million dollars a day and a war that is taking too many innocent lives — if we have all these challenges and nothing’s changing, then every minister in America needs to come together — form our own surgery teams — and take the bullets out.

And this:

If we want to stop the cycle of poverty, then we need to start with our families.

We need to start supporting parents with young children. There is a pioneering Nurse-Family Partnership program right now that offers home visits by trained registered nurses to low-income mothers and mothers-to-be. They learn how to care for themselves before the baby is born and what to do after. It’s common sense to reach out to a young mother. Teach her about changing the baby. Help her understand what all that crying means, and when to get vaccines and check-ups.

This program saves money. It raises healthy babies and creates better parents. It reduced childhood injuries and unintended pregnancies, increased father involvement and women’s employment, reduced use of welfare and food stamps, and increased children’s school readiness. And it produced more than $28,000 in net savings for every high-risk family enrolled in the program.

This works and I will expand the Nurse-Family Partnership to provide at-home nurse visits for up to 570,000 first-time mothers each year. We can do this. Our God is big enough for that.

So he hits my two pet issues in a single speech: first, the country’s unconscionable jailing of hundreds of thousands of mostly poor and mostly black men and women; and second, the empty rhetoric of the American “pro-life” movement and what an America that really supports families would look like. And he gets both issues right.

Sullivan calls Obama a compassionate conservative — made in the model that Bush supposedly was. I don’t buy that. It aggrandizes Bush and ties Obama to his sinking ship at the same time. It’s also patently false. Obama’s speech rings more of the Democratic Great Society era than of early 21st century compassionate conservatism.

At root, it doesn’t really matter how we label Obama’s speech. The bottom line is that he’s talking about important issues, connecting faith to progressivism, and doing what’s even more improbable — inspiring this cynical blogger.



Justice for the Rest of Us?
June 5, 2007, 11:58 pm
Filed under: civil rights, criminal justice, frivolity, news

So you can’t go anywhere these days without hearing about Lindsay Lohan’s ignominious return to rehab or seeing Paris Hilton’s most recent mugshot. For the most part, celebrities have tended to get away with snorting and driving — a stark contrast to the rest of us, and particularly to those of us living in communities of color. It’s been a jarring and almost blinding hypocrisy.

Today, in an article on TomPaine, the Brennan Center‘s Kirsten Livingston calls our attention to the hypocrisy of American justice. And it’s not only drug rehabilitation that has failed people like Lohan and Hilton — it’s carcereal rehabilitation that has failed them and the wider public. And especially women:

These trends have been especially harsh for women. Since 1970, the rate of incarceration of women has increased more than twelvefold, and although about half of women in state prisons had been using drugs or alcohol at the time they committed the offense for which they were incarcerated, treatment for substance abuse remains grossly inadequate in our prisons and jails. Similarly, there is limited mental health treatment available, though nearly three-quarters (73.1 percent) of women in state prison in 2005 had a mental health problem, compared to 55 percent of men.

As our incarceration rate has grown, moreover, governments have adopted policies that limit the access of people convicted of crimes to student loans, jobs and the right to vote long after they have paid their debts to society. Together, these trends mean that staggering numbers of Americans are either behind bars or disabled from reclaiming responsible, productive lives after prison. Their substance abuse and mental health problems go untreated and, predictably, are often greatly exacerbated by life behind bars.

Research and common sense show that these punitive responses fail to prevent future crimes or provide rehabilitation, while wrecking lives and devastating families. Seven in 10 women enmeshed in the criminal justice system, for example, have minor children to care for.

Not surprisingly, the system has been unduly harsh not only on women but also on racial minorities:

Although African Americans and whites use illegal substances at about the same rates, African Americans are far more likely to be incarcerated for drug offences. Between 1990 and 2000 the number of African Americans incarcerated in state prisons for drug offenses increased by over 80 percent to 145,000, a number that is 2.5 times higher than that for whites. Affluent whites like Ms. Lohan are far more likely to be let go with a warning, to avoid prison time, or to avoid criminal scrutiny at all. Their substance abuse problems lead them to places like Promises, not the penitentiary. Race and class, then, play a powerful role in determining the consequences of unlawful behavior.

Livingston is optimistic though. She sees glimmers of hope in programs being implemented around the country, from New York’s Drug Treatment Alternative to Prison program to a California program that — shock! — is in jeopardy and may lose its funding. I’m not as optimistic as Livingston. I wonder, as Professor Plum pointed out in a comment yesterday, if the racism in our criminal justice system is so ingrained at this point that we don’t even see it anymore except for when it’s smacking us in the face.

I mean, we make jokes at Paris Hilton’s expense, and at the expense of the myriad other celebrities who get caught with drugs but get away scot free. Given today’s biased system, isn’t it they who should be laughing?



Juries and Dodos (the bird)
June 4, 2007, 10:39 pm
Filed under: civil rights, criminal justice, law, news

Some days, I think that the jury system should go the way of the dodo. As in, go away. Go extinct. Die out. As it has in the UK and other parts of the world. Juries – if they are fair and reasoned – could be a good thing and a check to the power of a single judge. But as they operate today they are often neither fair nor reasoned.

Today, for example, there were two articles in the NY Times about how far the jury system has strayed from its ideal as a deliberative body that metes out real justice — not racially biased (or otherwise biased) “justice.” In the first article, the times reported on today’s Supreme Court decision that makes it much easier for prosecutors to strike any juror who is not gung ho in favor of capital punishment from a death penalty jury. The Supreme Court, in (yet another) 5-4 decision penned by swing vote Justice Kennedy, overturned notorious conservative judge Alex Kozinski’s opinion at the appellate court level. This Court is not a moderate one. Not on abortion rights. And not, it turns out, on issues of criminal justice and the basic fairness that is necessary to lend credibility to the American criminal justice system.

The second Times article — a column by Adam Liptak — points to a fatal flaw in today’s jury sytem. A flaw that today’s Supreme Court decision will only exacerbate. In his column, Liptak, who is himself a trained lawyer, discusses the practice of peremptory strikes. During the process of jury selection, the prosecutor and defense attorney each have a set number of peremptory strikes; that is, they can cut a certain number of potential jurors for no cause and without the acquiescence of the adversary. Legitimate reasons to do this might include the belief that a juror will not be fair to the state or to the defendant. The most obvious illegitimate reason to use a peremptory strike is racism. but that’s of course, exactly when peremptory strikes are often used and when they do the most to undermine the fairness of the trial process. Liptak provides a case in point:

Allen Snyder, a black man, is on death row in Louisiana. An all-white jury in Jefferson Parish, in the New Orleans suburbs, sentenced him to death in 1996 for the fatal stabbing of a man his wife was seeing.

It took some work to get an all-white jury in a parish that is almost one-quarter black, but the prosecutors were up to the task. They used peremptory strikes — ones not requiring a reason — to remove all five eligible potential jurors who were black. (Four more blacks were removed for cause, all at the request of the prosecution.)

The purge had a purpose, according to a dissenting justice on the Louisiana Supreme Court, who called for a new trial.

“The prosecutor’s intention to utilize racial bias became crystal clear when he commented during closing argument in the penalty phase that O. J. Simpson ‘got away with it’ in the California verdict that had been rendered shortly before this trial,” the justice, Harry T. Lemmon, wrote.

Peremptory challenges are at odds with the goal of driving racial bias (and other biases) as far away as possible from the criminal justice system. Yet their use in racist ways continue. Liptak has more:

According to a 2003 report of the Louisiana Crisis Assistance Center, which studied 390 felony jury trials in the parish from 1994 to 2002, the district attorney’s office used peremptory strikes to remove eligible black jurors three times as often as white ones.

In the two decades since Batson [the Supreme Court case supposedly ending exclusion of jurors based on race], there have been 20 murder trials in Jefferson Parish that ended in death sentences. Information about the race of the jurors is available in 18 of them.

Because the parish is 23 percent black, according to the 2000 census, you might expect to see about 3 black jurors on each 12-member panel. But of the 18 juries, 10 had no black members. Seven had one. One had two. None had three.

So today’s news and analysis provided a one-two punch that might prove to be a K.O. Now prosecutors have much more leeway to strike jurors they don’t like without using their peremptories. And not only that, but they can continue to use their peremptory strikes in a racist fashion with impunity. And the mass incarceration of black men and women marches on.



Gay Conjugal Visits (not a punchline)
June 4, 2007, 9:34 am
Filed under: criminal justice, feminism/s & gender, guests, news, news & views, sexuality

(Guest post by SF; no connection to San Francisco)

As the NYTimes recently reported:

Gay and lesbian prisoners in California will be allowed overnight visits with their partners under a new prison policy, believed to be the first time a state has allowed same-sex conjugal stays.

The change arrived over two years after a 2003 California law provided equal rights for registered domestic partners in California, both same sex and non-married heterosexual couples. The delay, according to the Department of Corrections and Rehabilitation, was due to considerations of whether allowing the visits would expose gay inmates to danger inside the prison, where they are sometimes singled out for attack. The policy shift – finally enacted under the threat of an ACLU lawsuit – is a double victory: for gay rights and prisoner rights. But the sum of the victories is greater than their individual parts.

As a rule, groups that are doubly (or triply) discriminated against (black poor women, for example) are redressed only in one capacity or, in the best case scenario, in each of their individual discriminated capacities. What remains unaddressed is the harm inflicted by multiple, simultaneous discriminations. The situation is even worse in the case of prisons. Scholars and activists like Angela Davis have convincingly demonstrated that racism lies at the heart of the American penitentiary system; in sum: if the people being locked up weren’t black, America would be much less willing to lock ’em up under such harsh conditions and for so long. (Slavery’s long lasting legacy.) We lock up the Other much sooner that we’d lock up our Selves. Viewing the prisoner as Other allows us to deny their basic humanity.

Many states don’t even offer conjugal visits. The fact that California – which now spends more money on its notorious prisons than it does on its vaunted universities – allows conjugal visits in the first place is a recognition (small as it may be) of the humanity and basic human needs and desires of prisoners. That this recognition would be extended to a group whose basic human needs and desires have only rarely been recognized in America is all the more impressive.

It is sad, of course, that gay prisoners in California – deprived of so many freedoms taken for granted outside the prison walls – now have basic human needs and desires recognized in a manner that much of the rest of the country (the current Supreme Court included) likely would reject even for gay female and male American citizens walking freely.



Taking Spitzer to Task
May 30, 2007, 10:39 pm
Filed under: activism, civil rights, criminal justice, drug war, muzak, news, video

I’ve never fully understood why people get so angry when famous Hollywood stars throw their celebrity behind an important social issue. That’s probably because they’re usually championing progressive policies with which I agree (well, except for Patricia Heaton who makes my skin crawl). Why not cheer when people who are overpaid and often overhyped actually use their fame for positive ends?

Case in point: Rapper Jim Jones’s recently released single excoriating the drug war and putting pressure on NY Governor Elliot Spitzer to live up to his campaign promises and reform New York’s harsh Rockefeller drug laws. The song, “Lockdown,” which Jones wrote with the help of the Drug Policy Alliance for an upcoming documentary of the same name, highlights the racially imbalanced effects of the War on Drugs . And Jones isn’t coy. He’s released a music video:

And here’s what he has to say for Spitzer:

“This one goes out to the governor. Gov. Spitzer. Eliot Spitzer, you say you want to make change? Well, we waitin’ on it. Matter of fact, we’re dependin’ on it.”

The Rockefeller laws were first reformed in 2004 with the passage of NY’s Drug Law Reform Act, but those reforms, touted as groundbreaking, have meant little practically:

Prisoners sentenced under mandatory minimum Rockefeller drug laws now number more than 13,000, and an astonishing 91% of them are black or brown. The reforms enacted in 2004 have resulted in the release of only 300, leaving thousands of prisoners serving mid-level mandatory minimum sentences still in purgatory.

So Spitzer’s got to keep his promise and push for real change. If not, because of Jones’s song, a lot more people will be ready to take him to task.



NYC Lowers Bar to Hold People Behind Bars
May 28, 2007, 11:08 pm
Filed under: civil rights, criminal justice, law, news, NYC

The NYC prison reform community has been up in arms for the last month or so over proposed changes to the city’s minimum standards for its jails. In April, the New York Board of Correction, supposedly the watchdog over prison conditions in the city and the manager of all of the city’s jail facilities, suggested changes to the requirements it sets for city jails. In addition to allowing the city to eavesdrop on telephone conversations between incarcerated men and women and their friends and families and to censor their mail, the new standards would allow for:

# More crowding: Open dormitory housing units would hold up to 20% more prisoners.
# More round-the-clock cell lock-in: Virtual solitary confinement-cell lock-in all day except for an hour for exercise and a shower-would be applied to prisoners who are removed from general population for their own protection or for administrative reasons. Prolonged cell confinement of this sort has been linked to prisoner suicides.
# Less assistance for Spanish-speaking prisoners: The amendments would repeal the requirement that the jails have sufficient Spanish-speaking staff to assist Hispanic prisoners, and would provide only that the Department of Correction must implement Aprocedures@ to ensure that they can understand communications from staff. There is no requirement or even hint as to what those procedures might be.
# Denial of personal clothing: The amendments would allow jail officials to require pre-trial detainees, in addition to sentenced prisoners, to wear uniforms, despite their having been convicted of nothing, and would deprive their families of the ability to provide them with clothing to protect them from the extremes of temperature often found in the jails. They would have to wear uniforms at all court appearances except actual trials, stigmatizing them before the court.

There are so many problems with these standards that it’s hard to know where to begin. New York Civil Liberties Union Director Donna Lieberman is on the right track:

“For the Board of Corrections to proceed down this path would do a fundamental disservice to prisoners and their families and would make all New Yorkers both less safe and less free,” said Donna Lieberman, NYCLU Executive Director.

Why would these standards do a disservice? First, they would continue the degradation and humiliation of incarcerated women and men and perpetuate some of the problems that lead to recidivism. Second, it will violate the privacy rights of both incarcerated people and their families. Third, as Legal Aid noted in a recent press release, the new proposed standards allow the Board of Correction to deflect the proposed improvements to carcereal policy, including ending disability discrimination, providing G.E.D. education for incarcerees, and renewing a court order protecting incarcerated men and women from abusive searches.

The human rights of incarcerated men and women are not just an issue for those of us concerned with prison reform. It’s a women’s issue too. As Bridget Crawford at Feminist Law Professors notes (quoting a report of the Correctional Association’s Women in Prison Project):

*As of January 2007, 2,859 women were incarcerated in New York’s prisons – 4.5% of the state’s total prison population of 63,215. An additional 26,600 were parole (about 3,100) and probation (roughly 23,500).
* From 1973 to 2007, the number of women in New York’s prisons increased by 645%.
* Almost 69% of the state’s female inmates are women of color: about 47% are African American, roughly 22% are Latina, and 30% are Caucasian.
* New York’s general public is 30% women of color and almost 69% Caucasian.
* 84% of women sent to New York State prison in 2006 were convicted of non-violent offenses.
* As of January 2007, 33% of New York’s female inmates were incarcerated for a drug offense. Almost 80% of women drug offenders were women of color.

The fact that we are expending energy fighting against proposed bad changes instead of in support of proposed positive steps is both frustrating and alarming. I keep wondering when we will realize that the U.S. is not the beacon of righteousness in the area of human rights that we claim to be. Certainly there have been wake up calls in recent years (hello Abu Ghraib and Guantanamo) and yet the U.S. still holds itself out to the world as a model. A little melodramatic? Maybe. But these days I’m not so sure rationality gets us anywhere.

If you want to do something, head over to petition online and sign the petition against the proposed changes.