Monday, March 12, 2012

Demanding a trial as civil disobedience

Michelle Alexander’s book The New Jim Crow, now out in paperback, has achieved a wide readership (some 175,000). Even the New York Times ran a story on the Arts page (I guess mass incarceration is just not front page news in the “paper of record”). See here, Democracynow here and here and TomDispatch here. As the "arts" story suggests, Alexander has reached the black middle class (and many whites and Chicanos as well) as well as speaking widely in high schools. She has publicized the issue of mass incarceration as a new and extreme form of racism in the United States, centered on the black and latin but also poor white community. See here, here, here and here. The figures again: 2.3 million in prison – 25 % of the world’s prison population, and another 5.1 million on probation. On her account, most of the increase (8 times over the last 30 years) comes from possession of marijuana on which the police and the Supreme Court have collaborated in violating the Fourth Amendment - allowing police stops and searches of cars in minority neighborhoods which occasionally turn up marijuana - and targeting blacks and Chicanos

Alexander has listened to the stories of those incarcerated, particularly for drug “crimes.” She tells the story of Susan Burton:

"Her odyssey began when a Los Angeles police cruiser ran over and killed her 5-year-old son. Consumed with grief and without access to therapy or antidepressant medications, Susan became addicted to crack cocaine. She lived in an impoverished black community under siege in the 'war on drugs,' and it was but a matter of time before she was arrested and offered the first of many plea deals that left her behind bars for a series of drug-related offenses. Every time she was released, she found herself trapped in an under-caste, subject to legal discrimination in employment and housing."

"Fifteen years after her first arrest, Susan was finally admitted to a private drug treatment facility and given a job. After she was clean she dedicated her life to making sure no other woman would suffer what she had been through. Susan now runs five safe homes for formerly incarcerated women in Los Angeles. Her organization, A New Way of Life, supplies a lifeline for women released from prison. But it does much more: it is also helping to start a movement. With groups like All of Us or None, it is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights."

"I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes. Could she be serious about organizing people, on a large scale, to refuse to plea-bargain when charged with a crime?"

“'Yes, I’m serious,' she flatly replied."

Given the very large numbers trapped in the prison system, there are a mass of such tragic stories in the United States. Rich and odious politicians (the Congress) led by Southern segregationist Democrats who then became Republicans, have voted the harsh mandatory sentencing which prevents judges, were they inclined to be civilized, to act in such a manner. Bill Clinton mandated that any drug "felon" would be barred from public housing for life. That they are all responsible for destroying lives suggests that the criminals are in high places, and many decent people in the prison/probation complex.

Think about other countries. Much of Europe does not imprison many people, and those for short times. Why does the so-called “land of the free” require imprisoning a number exceeding China, Russia and all the remaining dictatorships of the Middle East combined (and in terms of population, at a much higher rate). What happened to the Bill of Rights that so many poor young people, mainly of color, should be locked away and then – with a record – denied a chance for a life? How can the rule of law, the right to trial by a jury of one's peers and an attorney, have disappeared and been replaced by "plea-bargaining" (over 90% of all criminal cases)?

Alexander underlines the role of the Supreme Court in trashing the Constitution with regard to minority people and poor whites. Her scholarship is often at its best in naming the deliberate sabotaging of any reasonable principles of punishment by the Supreme Court over the last 24 years.

"The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment."

"No wonder, then, that most people waive their rights."

Alexander then traces the case of Erma Faye Stewart, a Texan who was innocent but took a plea bargain, after a month, to get back to her children. No such luck, however - once out on probation, it was impossible to find a job, Stewart became homeless with her two children and they were put into foster care:

"... Erma Faye Stewart, a single African-American mother of two...was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal."

That either of these stories exists in the United States is a testimony to the decadence of the so-called legal system. In addition, as James Forman Jr. has pointed out, one third of the prisoners are white. See here. There is a broad multiracial interest in fighting racism.

Sarah Burton suggests that every prisoner demand a trial (swamping the court system). This would force reconsideration of these unjust practices (and the Times was good to print this proposal today: civil resistance by going to court is apparently a form of nonviolence that the editorial page is willing to discuss...). There is something right and lovely about insisting on a trial in a court of law to make the officials of this increasingly privatized system account to juries for the harsh sentences.

But the cost in stiff sentences for individuals may be too high for this to become a mass movement. On the other hand, stories of losing one’s kids and being barred from having a life by the conditions of probation, all for recreational drug possession or use, seems monstrous. And a direct approach might shame these officials.

Alternately or as well, a mass civil disobedience campaign directed at poiticians and prison complexes would be important. Obama has done very badly on this issue – as badly as on immigration where he has been an enforcer and deporter, a splitter up of families (though recently ICE has apparently pulled back from deporting teenagers who might qualify for the "Dream Act" if it eventually passes). Obama and Eric Holder are thus the opposite of Ron Paul, the Cato Institute, Andrew Sullivan, and now of all people, Pat Robertson on the legalization of marijuana (2/5 of the 8 fold increase in prisoners Alexander traces between 1970 when 300,000 were imprisoned and today's 2.3 million comes from “possession.")

That the New York Times ran a story about civil disobedience – taking the ironic form of demanding a trial – shows how far this issue has come (how far Alexander has brought it through her efforts and those of many others). This includes not just anti-racists or radicals and liberals; many conservatives - those who care about the rule of law and decency - are taking up this issue:

"Rick Olson, a state representative in Michigan, was one of the few whites and few Republicans in the room when Professor Alexander gave a talk sponsored by the state’s black caucus in January."

“'I had never before connected the dots between the drug war, unequal enforcement, and how that reinforces poverty,” Representative Olson said. “I thought, ‘Gee whiz, let me get this book.’ ”

"Reading it, he said, inspired him to draft a bill decriminalizing the use and possession of marijuana."

"The Rev. Charles Hubbard, the pastor at Gloria Dei Lutheran Church, a mostly white evangelical congregation in Garland, Tex., said he had started carrying the book with him everywhere and urges fellow pastors to preach about it, though he acknowledged it could be a tough sell in Texas."

“'I think people need to hear the message,' he said. 'I don’t think Anglo folks have any idea how difficult it is for African-American men who get caught up in the criminal justice system.'”

"Mr. Hubbard said he was particularly impressed by how 'well-documented' Professor Alexander’s book is."

This is an increasingly broad movement which could give rise to mass, militant nonviolence, shutting down relevant offices for example, or protesting American politicians including Obama and Attorney General Eric Holder, which in turn would disseminate information about and increase the movement..

Capitalism has now developed to the point where instead of relying on black, latin and poor white labor, it creates a large, permanent reserve army of the unemployed as Marx calls it (cf. ch. 26 of Capital on the general law of capitalist accumulation of which this is a striking and terrible example). Most people involved in the prison complex get caught in it because there aren’t ready jobs even in the professional army for low pay. At the American Political Science Association last fall, I was dismayed to learn that the army does not provide much opportunity for very poor blacks (see here). Globalization and the current form of capitalism are harming the vast majority of the people, and consigning many to a life without hope.

In her Democracynow interview, Michelle Alexander cast more light on how the imprisonment of a reserve army extorts federal resources and extra representation for the well-to-do in rural white communities:

"You know, kind of a well-kept secret about the way our census laws and redistricting operates in the United States is that people who are warehoused in prisons — and the majority of new prison building in the United States has taken place in relatively white rural areas — the majority of the people who are put in those prisons, particularly in a state like New York, are poor people of color. But the people warehoused in those prisons are denied the right to vote, right? But those people behind bars are counted through the census as part of the local population for the purposes of redistricting, leading to a greater number of state representatives assigned to those rural communities, even though the people behind bars can’t vote, and they’re not accountable to them. And additional federal funding flows to those communities, because their population has been inflated because they have such large prison populations. Meanwhile, the poor communities of color, you know, from which these prisoners came, lose representation in their state legislatures, because their population has declined. And the funding and support that might otherwise flow to those communities is reduced, because their numbers have been deflated as a result of the mass imprisonment of their community members in rural white communities."

If justice is to be done, all the corrupt Supreme Courts decisions which license police stops and searches in minority communities and life sentences for possession will be reversed as well as the privatizing of prisons (an increasingly big economic motivation for maintaining this destructive and costly system – along with the jobs for guards and officials and probation officers…). The kind of nonviolence – at great risk - Burton suggests must be accompanied by more and longer struggles to reestablish a modicum of genuine freedom – the equal freedom of citizens – in this country.

OPINION
Go to Trial: Crash the Justice System

The New York Times
More than 90 percent of criminal cases are never tried before a jury.
By MICHELLE ALEXANDER
Published: March 10, 2012

Columbus, Ohio

AFTER years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.

Her odyssey began when a Los Angeles police cruiser ran over and killed her 5-year-old son. Consumed with grief and without access to therapy or antidepressant medications, Susan became addicted to crack cocaine. She lived in an impoverished black community under siege in the “war on drugs,” and it was but a matter of time before she was arrested and offered the first of many plea deals that left her behind bars for a series of drug-related offenses. Every time she was released, she found herself trapped in an under-caste, subject to legal discrimination in employment and housing.

Fifteen years after her first arrest, Susan was finally admitted to a private drug treatment facility and given a job. After she was clean she dedicated her life to making sure no other woman would suffer what she had been through. Susan now runs five safe homes for formerly incarcerated women in Los Angeles. Her organization, A New Way of Life, supplies a lifeline for women released from prison. But it does much more: it is also helping to start a movement. With groups like All of Us or None, it is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights.
I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes. Could she be serious about organizing people, on a large scale, to refuse to plea-bargain when charged with a crime?

“Yes, I’m serious,” she flatly replied.

I launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights. The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.

But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment.

No wonder, then, that most people waive their rights. Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.

On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

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.

In telling Susan that she was right, I found myself uneasy. “As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” I said. “I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk — even if it would send shock waves through a fundamentally immoral and unjust system?”

Susan, silent for a while, replied: “I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

Michelle Alexander is the author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”

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