Wednesday, August 14, 2013

A historic shift about arbitrary imprisonment in the United States


Several people have written to me recently about the grimness of the John Evans/ethnic cleansing of the West, a theme of many recent posts, as well as the disheartening character of a parasitical, grasping, billionaire elite which is using Congress to attempt to strangle any remnant of decency, fought for from below, from the New Deal era. Jake Terpstra asked me recently about whether I see any signs of hope.

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Having long been involved in protest, about civil rights and Vietnam and Iraq and Palestine, I see the possibility of fighting back and of movements even in dark times (the aim of the John Evans work is to help change people's consciousness about what America is, a novel multiracial and multicultural society, not a society run by genocidal whites; the old trappings must be undone...) This does not say that the U.S. government in the West or toward blacks in the South was not monstrous, and that there is not a history of "many thousands gone." There is.

But rather, it is important to fight (even the Nazis were - after the slaughter of millions of innocents - finally put out of business).

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More to the point, however, Michelle Alexander helped crystallize a movement against The New Jim Crow about which she went around the country speaking two years ago. Sbe names a racist prison system which confines 2.3 million people, 25% of the world's prison population. See here, here, here, and here. It jails arbitrarily - through "plea-bargaining" by which some 97% of criminal cases are "settled" - many innocent people. It hurts primarily black and latin people, but also many whites.

Charlie Savage's and Erica Goode's intelligent article on the front page of the Times yesterday - "Two Powerful Signals of a Major Shift on Crime" strikingly invokes Alexander. Attorney General Eric Holder mentioned that the US imprisons 25% of the world's prisoners in his talk calling for ceasing to jail nonviolent "offenders" for possession of minimal amounts of drugs.

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The Times also ran an editorial today which reiterated some of Michelle Alexander's statistics. Other experts have also spoken out, but none with the crusading force, reminiscent of Ida B. Wells (this was Vincent Harding's analogy about Alexander):

"The statistics have been repeated so often as to be numbing: 1.57 million Americans in state and federal prisons, an increase of more than 500 percent since the late 1970s, at a cost of $80 billion annually. In 2010, more than 7 in 100 black men ages 30 to 34 years old were behind bars. The federal system alone holds 219,000 inmates, 40 percent above its capacity, thanks to strict sentencing guidelines and mandatory minimum sentences. Of these inmates, nearly half are in prison for drug-related crimes.

In Mr. Holder’s words, 'too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.' Many criminal-justice experts have long felt the same way. What made Mr. Holder’s speech timely and important was that it reflected a fundamental shift in thinking about crime and punishment at the highest levels of government."

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There has been a big movement from below on this issue, and on stop and frisk - ineffectual profiling of nonwhite people - which federal judge Scheindlin at last ruled against in New York (Mayor Bloomberg, who is, in this respect, horrific, sulked about this though this policy contributes to sending generations of black and latin youth to prison, keeping them outside the work force except for prison/slave labor - they are part of what Marx calls the reserve army of the unemployed, something that capitalist accumulation generates over time and depends on - and depriving them of a chance at a decent life (though awful in many ways, Bloomberg has also funded some programs to help black and latin young people - the poor black youth unemployment rate in the city was 96% when Obama came to office - get some education and find jobs).

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It is the movement from below - and the unusual power of Michelle Alexander's words - which have helped to crystallize this sea-change. In addition, the prison-industrial complex is enormously costly and strains state budgets. Even reactionary states like Texas have adopted some reforms in the direction Holder urges.

And as the Times says, there is, strikingly, at least so far, little criticism even in the elite of this shift.

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Within three years of Alexander's book being published, the seemingly immovable mountain of the prison-industrial complex is, strikingly, beginning to shake. That is a tribute to all those who work for change from below - including the courageous hunger strikers against solitary, a form of torture, in California, some 30,000, see here - and how large mountains can be moved (I wrote about the movement against bondage before the American Revolution and during it in Black Patriots and Loyalists: Fighting for Emancipation in the War of Independence, how the determined actions of individuals make a difference - and this change represents "enough! enough!" as the article cites Barbara Arnwine as commenting; it marks, with much work yet to be done, a fundamental shift, a beginning...

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"While the timing was a coincidence, Barbara Arnwine, the president of the Lawyers Committee for Civil Rights Under Law, said that the effect was 'historic, groundbreaking, and potentially game-changing.'

'I thought that the most important significance of both events was the sense of enough is enough,' said Ms. Arnwine, who attended the speech in San Francisco where Mr. Holder unveiled the new Justice Department policy. “It’s a feeling that this is the moment to make needed change. This just can’t continue, this level of extreme heightened injustice in our policing, our law enforcement and our criminal justice system.”

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Now a conservative is someone who believes in the rule of law and habeas corpus. He or she does not believe in throwing people into prison in huge numbers, and is often - at least as she leans toward libertarianism - repelled by mass incarceration, focused on minority young people, for "nonviolent" non-crimes. Many believe, with Andrew Sullivan, that the laws about marijuana - given this immense social cost, this New Jim Crow, creating the most massive police state in the world - need to be abolished.

There has been some push from this direction, too.

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During the so-called global war on terror, I often found myself allied with conservatives who believe in habaes corpus - the centerpiece of Anglo-American law, that each person deserves a day in court and not to be thrown away by a powerful government - and understand that torture is a crime (I see that part of a conservative vision as something core to what I believe also).

In contrast, Bush is a war criminal - and the big government reactionaries - those who want a swollen military and police to keep down nonwhite people and facilitate the "free" market in which American corporations and banks have large advantages and engage in predation towards others - seek to sustain or even "privatize" this apparatus and its horrible consequences.

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Remarkably, even some of the latter are changing because of the huge financial "costs" (omitting or eliding what it does to innocent human beings is, of course, disgusting).

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Now the prison system is horrific - and once one is enmeshed in it, it bears strong resemblances to Kafka, runs people, including lots of young people not accused of violence, around exhaustingly to no avail, denies them any civilian life and thus, without great effort from below, tries to cut the heart out of them. That will not yet change.

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But these two events - Holder's speech, Judge Shira A. Scheindlin’s ruling - mark the effect of a movement, of people speaking out against the injustice of the American police state.

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Just one further note. My wife was recently on a jury for a case brought by a Chicano women in her mid-thirties against a former boyfriend who had stalked her after they had broken up (entered her house when she wasn't there, rearranged her things, stumbled in on her boyfriend one day). It was an unusual case. Patriarchy remains strong in the Chicano community and women often do not bring charges against abuse. But the prosecution was done by several young women, so the issue - as Paula suggests hailing back to Susan B. Anthony and Seneca Falls - was looked into ably and fairly (the crime was also not charged as a felony). The jury deliberated about the case, and she remarked on the attentiveness and fair-mindedness of the jurors.

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Once again, some 97% of "cases" in the United States are settled by "plea-bargains." They never go to trial. This gives immense advantages to the DA's office, to load on arbitrary charges, boost up the potential sentence, make defense costly. In addition, Congress has through mandatory sentencing dictatorially - for racist purposes - restricted what decisions judges can reach. The plea-bargaining system and the costliness of trials prevents trial by jury - often a decent thing as we can see from the foregoing case, another core principle of Anglo-American law - from occurring regularly.

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To reform the criminal justice system, abolishing plea-bargaining and mandatory sentencing would be a good start.

Participation on juries is the sole requirement left of democracy. There is no mandatory military service, because this is an empire and few would support risking their or their children's lives - except immediately after 9/11 - to achieve the strange foreign purposes of the elite; this is a lasting result of the anti-Vietnam War movement.

In addition, the right to vote is under massive attack, though as John Lewis - see here - and others are saying: this is fundamental to a democracy. It ought to be a constitutional right and a duty; voting should also be on the weekends, as in civilized societies, not on Tuesdays (European countries have 80-90% voting rates; the US has roughly 50% in Presidential elections...).

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These reforms would make the legal system much more effective in dealing with actual crimes and facilitate efforts to rehabilitate criminals (rather than allowing the elite to launch a criminal persecution of minority communities, sweeping up poor whites as well).

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One can look down too easily on the justice system when it works. Equal freedom and democracy require the rule of law and reliance on the intelligence of the people.

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That there has been real movement from below and now, in response, movement from above to begin to reform the American police state is striking...

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NEWS ANALYSIS
Two Powerful Signals of a Major Shift on Crime

Holder Calls for Drug Sentencing Changes: Attorney General Eric H. Holder Jr. discussed modifications to low-level drug offense charges to reduce taxpayer spending on prisons and address unfairness in the justice system.
By CHARLIE SAVAGE and ERICA GOODE
Published: August 12, 2013

WASHINGTON — Two decisions Monday, one by a federal judge in New York and the other by Attorney General Eric H. Holder Jr., were powerful signals that the pendulum has swung away from the tough-on-crime policies of a generation ago.

Critics have long contended that draconian mandatory minimum sentence laws for low-level drug offenses, as well as stop-and-frisk police policies that target higher-crime and minority neighborhoods, have a disproportionate impact on members of minority groups. On Monday, Mr. Holder announced that federal prosecutors would no longer invoke the sentencing laws, and a judge found that stop-and-frisk practices in New York were unconstitutional racial profiling.

While the timing was a coincidence, Barbara Arnwine, the president of the Lawyers Committee for Civil Rights Under Law, said that the effect was “historic, groundbreaking, and potentially game-changing.”

“I thought that the most important significance of both events was the sense of enough is enough,” said Ms. Arnwine, who attended the speech in San Francisco where Mr. Holder unveiled the new Justice Department policy. “It’s a feeling that this is the moment to make needed change. This just can’t continue, this level of extreme heightened injustice in our policing, our law enforcement and our criminal justice system.”

A generation ago, amid a crack epidemic, state and federal lawmakers enacted a wave of tough-on-crime measures that resulted in an 800 percent increase in the number of prisoners in the United States, even as the population grew by only a third. The spike in prisoners centered on an increase in the number of African-American and Hispanic men convicted of drug crimes; blacks are about six times as likely as whites to be incarcerated.

But the crack wave has long since passed and violent crime rates have plummeted to four-decade lows, in the process reducing crime as a salient political issue. Traditionally conservative states, driven by a need to save money on building and maintaining prisons, have taken the lead in scaling back policies of mass incarceration. Against that backdrop, the move away from mandatory sentences and Judge Shira A. Scheindlin’s ruling on stop-and-frisk practices signaled that a course correction on two big criminal justice issues that disproportionately affect minorities has finally been made, according to the advocates who have pushed for those changes.

“I think that there is a sea change now of thinking around the impact of over-incarceration and selective enforcement in our criminal justice system on racial minorities,” said Vanita Gupta of the American Civil Liberties Union. “These are hugely significant and symbolic events, because we would not have either of these even five years ago.”

Michelle Alexander, an Ohio State University law professor who wrote “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” an influential 2010 book about the racial impact of policies like stop-and-frisk and mandatory minimum drug sentences, said the two developments gave her a sense of “cautious optimism.”

“For those of us who have become increasingly alarmed over the years at the millions of lives that have been wasted due to the drug war and the types of police tactics that have been deployed in the get-tough-on-crime movement, today’s announcements give us fresh hope that there is, in fact, a growing public consensus that the path that we, the nation, have been on for the past 40 years has been deeply misguided and has caused far more harm and suffering than it has prevented,” she said.

But not everyone was celebrating. William G. Otis, a former federal prosecutor and an adjunct professor at Georgetown Law School, described Mr. Holder’s move as a victory for drug dealers that would incentivize greater sales of addictive contraband, and he suggested that the stop-and-frisk ruling could be overturned on appeal.["fair-minded" reporting means that no matter how awful the facts, some wretched perpetrator of an unjust system must be cited, even though his opinion is vapid...]

Mr. Otis also warned that society was becoming “complacent” and forgetting that the drug and sentencing policies enacted over the last three decades had contributed to the falling crime rates.

Yet Chuck Wexler, executive director of the Police Executive Research Forum, a Washington-based research group, said many police chiefs agreed that it was time to rethink mandatory sentencing for low-level drug offenses. And he said departments across the country would examine the stop-and-frisk ruling in New York “to see if their practices pass muster.”

But he added: “You can’t get away from the fact that in most large cities, crime is concentrated in poor areas which are predominantly minority. The question becomes, what tactics are acceptable in those communities to reduce crime? And there is a trade-off between the tactics that may be used and the issue of fairness.”

David Rudovsky, a civil rights lawyer in Philadelphia who has been involved in a lawsuit over stop-and-frisk in that city, said both Holder’s announcement and the ruling were “part of a national re-examination of criminal justice policy that has been spurred for the last 40 years by a fear of crime.”

As that fear has lessened, he added, there has been more room to be heard for critics who say that some policies have gone too far and may be counterproductive. Those critics cite the low rate of finding guns with stop-and-frisk actions, and say that the experience of being searched — and the consequences if drugs are discovered — alienate people in targeted communities, making them less willing to give the police information about more serious violent crimes.

“There was the thought that if we stop, frisk, arrest and incarcerate huge numbers of people, that will reduce crime,” Rudovsky said. “But while that may have had some effect on crime, the negative parts outweighed the positive parts.”

Critics have argued that aggressive policing in minority neighborhoods can distort overall crime statistics. Federal data show, for example, that black Americans were nearly four times as likely as whites to be arrested on charges of marijuana possession in 2010, even though the two groups used the drug at similar rates.

“There is just as much drugs going on in the Upper East Side of New York or Cleveland Park in D.C.,” said Jamie Fellner, a specialist on race and criminal drug law enforcement for Human Rights Watch, citing predominantly affluent and white neighborhoods. “But that is not where police are doing their searches for drugs.”

Alfred Blumstein, a Carnegie Mellon professor who has studied race and incarceration issues, said Mr. Holder’s speech and Judge Scheindlin’s stop-and-frisk ruling both addressed policies that “were attempts to stop crime, but they weren’t terribly effective.”

Together, he said, the events indicated that society was “trying to become more effective and more targeted and, in the process, to reduce the heavy impact on particularly African-Americans.”

Charlies Savage reported from Washington, and Erica Goode from New York.

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EDITORIAL
Smarter Sentencing
By THE EDITORIAL BOARD
Published: August 13, 2013

You know a transformational moment has arrived when the attorney general of the United States makes a highly anticipated speech on a politically combustible topic and there is virtually no opposition to be heard.

That describes the general reaction to Eric Holder Jr.’s announcement on Monday that he was ordering “a fundamentally new approach” in the federal prosecution of many lower-level drug offenders. What once would have elicited cries of “soft on crime” now drew mostly nods of agreement. As Mr. Holder said, it’s “well past time” to take concrete steps to end the nation’s four-decade incarceration binge — the result of harsh sentencing laws enacted in response to increased violent crime in the late 1960s and 1970s.

The statistics have been repeated so often as to be numbing: 1.57 million Americans in state and federal prisons, an increase of more than 500 percent since the late 1970s, at a cost of $80 billion annually. In 2010, more than 7 in 100 black men ages 30 to 34 years old were behind bars. The federal system alone holds 219,000 inmates, 40 percent above its capacity, thanks to strict sentencing guidelines and mandatory minimum sentences. Of these inmates, nearly half are in prison for drug-related crimes.

In Mr. Holder’s words, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Many criminal-justice experts have long felt the same way. What made Mr. Holder’s speech timely and important was that it reflected a fundamental shift in thinking about crime and punishment at the highest levels of government.

The harsher-is-better mind-set is giving way to a recognition that widespread incarceration is, as Mr. Holder put it, “both ineffective and unsustainable.” Even if the historic decrease in violent crime is partly attributable to putting more people in prison, the nation is long past the point of diminishing returns.

As for specific policies, Mr. Holder ordered prosecutors to pull back when pressing charges in low-level, nonviolent drug cases. Where a defendant does not have a significant criminal history or gang ties, he said, prosecutors should avoid triggering mandatory minimum sentences, which are pegged to drug quantities, by leaving those quantities out of the charges.

Mr. Holder also loosened the restrictions on releasing elderly, ill prisoners who pose no safety threat; called for the enhancement of alternatives to prison, such as drug treatment programs; and directed prosecutors to redouble efforts to reduce recidivism, which remains a vexing problem nationwide.

Mr. Holder oversees a Justice Department that is playing catch-up to the states, which house a vast majority of America’s prisoners. Many states have reduced their prison populations and saved money without increasing the risk to public safety. Texas has cut sentences for drug and property offenses, while its prisons have expanded their treatment of drug addiction and mental health. The state’s prison population, which had grown exponentially, has been stable or declining since 2007; and violent crime has decreased at the same time.

It will be years before the full impact of Mr. Holder’s changes becomes clear. Much will depend on details, including how broadly prosecutors define a defendant’s criminal history, and what it means to have “ties” to a gang. In the interest of fairness, Mr. Holder should also apply the policy to the tens of thousands of federal inmates already serving out mandatory minimum sentences for drug-related crimes.

It would help if Congress ratified the new policy. Presidents come and go, and it is entirely possible that without long-term legislative reform some future administration could regress. Thankfully, there’s evidence that Congress, too, is finally getting the message. In 2010, it passed the Fair Sentencing Act, reducing huge and unwarranted disparities in sentencing for cocaine possession, which, in turn, shortened thousands of unjustly long sentences and has already saved about a half-billion dollars.

And two bipartisan bills would reduce mandatory minimums and give judges more discretion in sentencing offenders. Both represent a growing consensus that includes the political right. From the antitax crusader Grover Norquist to the American Legislative Exchange Council, which has previously supported tough sentencing laws, conservatives are among the clearest voices in favor of broad-based prison reform.

Public opinion is also firmly on the side of reform. A 2012 Pew Charitable Trusts poll found that nearly half of voters believed that too many people were in prison, and more than 80 percent supported reducing prison time for low-risk, nonviolent offenders. One of the last missing pieces in the reform effort has been the support of federal law enforcement. In unmistakably strong terms, Mr. Holder has now supplied it.

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