Mass Incarceration: Points of Agreement on the Right and the Left
(photo of Susan Burton)
Civil rights attorney Michelle Alexander reported in her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, that largely as an intentional consequence of the war on drugs, there are more African American men under correctional control now than were enslaved in 1850. People of color have been rounded up en masse for relatively minor, non-violent drug offenses. Alexander concluded all this came about in part as a strategy to deprive African Americans of rights, including the right to vote.
William J. Stuntz, Harvard Law professor, evangelical Christian and self-identified conservative, (who sadly died much too young, before his book, The Collapse of American Criminal Justice, was published in 2011) argued that black people are disproportionately imprisoned because they commit more crimes, that incarceration rates have risen in part because the system used to be too lenient, that incarceration keeps at least the incarcerated from committing more crimes, and that police carry out drug sweeps in certain neighborhoods as a strategy to get gang members off the streets when threats against witnesses and the no-snitch culture create daunting obstacles to the arrest and prosecution of violent criminals. Though Stuntz begins his book providing rational (non-racist) reasons for racial disparity, he does conclude the effects are racialized and lead to the collapse of the rule of law.
Given their different perspectives, it's striking that both Alexander and Stuntz reach some of the same conclusions and identify some of the same systemic problems in the American way of criminal justice. Even more striking to me is that when I listened to the anti-prison activists and former prisoners who spoke on Saturday, March 24 as part of the Teach-In "Sex, Race, and Class: What Are the Terms of Unity?" I heard some unity between their ideas and Stuntz's.
He would surely have characterized them as radicals. (Selma James, the keynote speaker for the Teach-In and editor of Mumia Abu-Jamal's latest book, said the people inside prison "have a political education we all need. A lot of the leadership of our movement is inside. We need them and we need them out.")
The panelists would surely have strenuously disagreed with much of Stuntz's book, but they are living examples of the injustice he identified in the system.
This essay will consider how the activists' experiences align with Stuntz's critique.
Susan Burton went to prison six times for drug offenses during the years she was in despair and became addicted to crack cocaine after her 5-year-old son was killed, run over by a police car. It was only after serving the sixth sentence that she was able to access drug treatment. Today, as the founder of A New Way of Life, she runs five homes that provide housing for formerly incarcerated women in Los Angeles and she also works with All of Us or None, a group advocating for the rights of former prisoners who leave State custody with a record that often deprives them of the vote and stands in the way of employment even while they are barred from receiving food stamps or living in subsidized housing, all of which too often leads to their children being permanently taken from them.
"We have to disrupt the flow of what's happening," she said at the Teach-In. And her most disruptive idea is this one, aimed at throwing a monkey wrench into the process of mass incarceration: What if every person arrested refused plea bargain offers and instead demanded her or his Constitutional right to a trial? Right now, she said, when a prosecutor threatens you with a fifteen-year sentence but says you'll only be locked up for two years if you waive a trial and plead guilty, of course people say, "Let me take the two because I'm scared of the 15. That's what the system relies on."
Michelle Alexander wrote about Burton's idea in an op-ed in the New York Times--"Go to Trial: Crash the Justice System," because in a system in which more than 90% of criminal cases are resolved by guilty pleas, and resources are entirely lacking for the trials that defendants are entitled to, a complete breakdown is exactly what would happen.
What does Stuntz say? He puts the percentage of cases resolved by guilty pleas even higher -- at 95%, most by plea bargains, and cites plea bargains as part of the greatest injustice. Unlike what we see each week on CSI, "noninvestigation is the norm." Prosecutors clear cases through pleas but no one investigates to be sure the defendant is actually guilty--not the D.A. and not the indigent defendant's appointed counsel who has only a brief time to represent the client. He writes, "punishment deters crimes only if crime, not innocence, receives punishment." That is not happening.
Like many conservatives, Stuntz is withering in his criticism of the Warren Court's decisions that protected the rights of criminal defendants, because this made the jobs of police and prosecutors much harder. But he also saw that by focusing on procedural safeguards--Did the defendant get a Miranda warning? Was there probable cause? Was evidence obtained through a proper search warrant?--the Court overlooked what was more important: The substance of justice. Search for the truth of either innocence or guilt. This is a critique people on the left will agree with as today we end up with Antonin Scalia asserting that as long as procedures have been followed correctly, "actual innocence" is no bar to execution.
The Court has mandated "due process" but not "equal protection." And African Americans do not enjoy "equal protection of the law" in court or in low-income predominately black neighborhoods which he says are "under-policed" (while Susan Burton says they are "over-policed.") But Stuntz's point is that the police are present as a punitive force, not a protective one in African American neighborhoods: black-on-black crime is not prevented and is rarely punished. He urges more community policing and less SWAT.
In this respect, he is in line with civil rights attorney Connie Rice who has urged that the rewards structure within the Los Angeles police department be changed. An officer should move up in the ranks not for having the highest number of arrests but rather for bringing the incidence of crime down by being a stabilizing presence in the neighborhood.
While Stuntz has an idealized view of the police compared to the perspective of young people who are stopped and harassed daily on the way to school and to families mourning the death of an unarmed loved one shot by an officer, he stresses that the real decisionmaking power and severity doesn't lie with the police but with prosecutors.
Prosecutors decide whether or not to bring a case and what charges to file and what plea bargain to offer. It's in this realm of prosecutorial discretion that African American defendants suffer most and have little recourse. As Stuntz writes: "As long as their decisions are not racially motivated" and it's rarely possible to provide proof of someone's intentional and knowing discriminatory motive, "police officers and prosecutors have unreviewable discretion to decline to arrest or prosecute offenders."
Another trick prosecutors use to obtain plea bargains is to file (or threaten to file) a range of charges for a single offense with separate sentencing for each charge. A crime that would ordinarily carry a sentence of a year or two suddenly adds up to something approaching a life sentence. Who wouldn't take a plea? And in death penalty states, writes Stuntz, the way capital punishment is used most is to induce people--whether guilty or not--to confess. If they accept a plea, the State will take the death penalty off the table. Stuntz likens this to extortion.
At the Teach-In, we heard from 76-year-old Hank Jones, one of the San Francisco 8. In 1971, a San Francisco police officer was killed during an assault on a police station. Members of a Black Panther Party splinter group were later arrested in New Orleans, stripped naked, beaten, blindfolded and subjected to more torture including electric probes to the genitals until they confessed to the crime and, after more torture, named names to implicate others in the Panther Party, including Jones. The case was thrown out because confessions obtained by torture were inadmissible.
Fast-forward to 2003. Following passage of the Patriot Act, Jones and others who had been named were suddenly arrested and charged again, this time under the new law with "domestic terrorism." Not only were they being charged under a law that didn't exist when the crime was committed in 1971, but the Bush administration, as we know only too well, had no qualms about torture and apparently believed public and judicial opinion would now support its use.
The San Francisco 8 benefited from the committed representation of activist attorneys. Most people targeted by prosecutors don't fare as well.
What happened to Hank Jones is an example of another problem cited by Stuntz: criminal law being made not by judges and juries, but by legislatures that pass bills leaving little room for discretion--or mercy--and with little regard for the possible consequences.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 mandated the deportation of legal immigrants who had committed felonies. In complete disregard of legal history and fairness, the law was made retroactive. Immigrants who had committed offenses even decades earlier, had since lived entirely law-abiding lives, held jobs, had married and were raising children, were suddenly detained and deported leaving their families in abandonment and poverty. And of course many of them had never seen trial for their offenses but had taken plea bargains--sometimes receiving probation and no jail time, but now found those guilty pleas meant ruined lives.
Alex Sanchez, a founding member of All of Us or None, explained at the Teach-In that most immigrants rights organizations in LA don't assist those who've been labeled criminals. Homies Unidos, the organization he co-founded offers services to exactly that population: gang members, former gang members, men with tattoos who face likely torture and assassination at the hands of death squads if they are sent back to Central America. His own work as a peace-builder and gang intervention worker brought him so many allies in the community that Sanchez, born in El Salvador and a former gang member, had enough support to help him win asylum. At the same time his work brought him enemies in law enforcement. He continues to be targeted by prosecutors and is now out on bail after his arrest on what the community--which raised bail money--sees as trumped-up charges of continued gang activity.
"Mass incarceration has failed to suppress gangs," Sanchez said. He cited gang truces that over and over again have led to a dramatic drop in gang violence. But after "the peace truce you have to bring resources. They have never brought resources into the community."
James, Burton, Jones, and Sanchez would certainly agree with Stuntz that the US justice system is now "the harshest in the history of democratic government."
How did we get here? Again, resources. Stuntz thought these were misallocated. Cities and counties pay for police and prosecution. States and the federal government pay for prisons. While more police on the street have a much more significant deterrent effect on crime than more incarceration, cash-strapped localities find it cost-effective to process cases quickly through plea bargains and pass the prisoners along to the State. (It remains to be seen if the release of some State prisoners back to the counties as mandated now in California will have an effect on how many new cases are prosecuted, especially for minor drug offenses.)
By the end of his book, after immersing himself in study of our criminal justice system, Stuntz begins to sound like a radical himself:
"African American imprisonment rates came to exceed the rate at which Stalin's Soviet Union incarcerated its citizens. Residents of black neighborhoods increasingly believed, with reason, that their life choices were limited to those Pushkin identified two centuries ago: they could ally themselves with their prison-bound young men or with the system that bound them. Tyrants, traitors, prisoners--none were good options. No wonder black neighborhoods in the early twenty-first century, when imprisonment rates were reaching their peak, spawned a "don't snitch" movement."
He recognized that when a community sees daily injustice and doesn't see the rule of law equally applied, it becomes morally and ethically easier to choose to live in a lawless way.
If we want to bring peace to our communities, yes, we need resources. And we need to see that true justice is also a necessary resource which our neighborhoods demand and for which we still wait.