Wednesday, January 11, 2017

Death Is Not a Victory: Dylann Roof and the Glorification of Hatred

Of all the people sentenced to death in the United States, Dylann Roof may be among the ones this planet will miss the least. He offered his North Carolina court and jurors no remorse or reflection for the vicious, pre-planned, racially-motivated murder of nine kind, generous people who welcomed him into their church with open hearts. And some of the statements I have heard from my friends on the left side of the map is that, while they "don't believe in the death penalty," this sentence offers some modicum of justice or vindication to black and brown people.

I couldn't disagree more.

My perspective on this is likely skewed by the fact that I spent many of my formative years in a country in which the motivation of suicide bombers, who kill themselves along with innocent citizens--women, children, elderly people, folks of various ages, occupations, and walks of life--is a subject of daily debate. What we know for certain is that shahids acquire mythical notoriety after death, glorified in myths of heavenly rewards and propelling others to follow in their footsteps.

In that respect, I think Dylann Roof got exactly what he wanted from the criminal justice system. This is not a vindication of the Justice Department, as the New York Times argued yesterday. Sentencing a self-represented man to death after he deliberately refuses to mount an effective defense, and boasts of his murderous acts to the jury, is not a victory. It is a capitulation. It awards Roof his utmost wish: to become an unrepentant martyr for other murderous racists to worship and follow.

In my work on Yesterday's Monsters, my book in progress, I look at correspondence between lifers and people on the outside, a small minority of which think that the heinous murders that landed their pen pals life without parole is "cool." The subjects of my study have written books and articles and argued before the parole board that there is nothing they abhor more than these followers. But even though some like the attention, a living inmate is largely that: a curiosity. I am reminded of Charles Manson's failed marriage, that petered out as a sick curiosity. No, a dead perverse hero is much better than a living, incarcerated one: a dead one lives on in glory in the twisted minds of his followers, while a living one is reduced to a dishonorable and diminished existence at the mercy of his jailers, marred and shrunk over time by age and sickness.

It is distressing to us, and especially to families of victims, when the state is manipulated into being lenient toward someone who is perceived to deserve punishment. I submit that it is far more distressing when the state is manipulated into being complicit in an act of violence so that its proposed victim, who orchestrates the violence, emerges as a victimized, lauded hero of "the system." For that reason alone, if for no other, the death penalty should be abolished. Even, and perhaps especially, in cases such as Roof's, in which it can only lead to the amplification and glorification of hatred.



Friday, November 18, 2016

Ganja in Trumpland: An Introduction



The campaigns for and against Prop. 64, the Adult Use of Marijuana Act, revolved around the minutiae of the proposition: Will the big guns get rich at the expense of mom-and-pop growers? Do we have to give away our medical marijuana cards and pay more for our pot? What do we do with impaired drivers?

It seems like pretty soon we'll have more serious problems on our hands as a result of legalization. Trump's planned nominee for Attorney General, Alabama senator Jeff Sessions, does not share the opinions espoused by reasonable, cost-minded Republicans about the harms of overcriminalization or the sensibility of a public health model for substance abuse. Instead, we will have to contend with a man whose acquaintances define as a "war on drugs dinosaur", and who claims that good people don't smoke marijuana.

(how do good people get their marijuana, then? Do they munch on edibles? Vape? Or maybe they smoke something else? What is it?)

The regime of state regulated-marijuana, as established by the Supreme Court in Gonzalez v. Raich (2005), means that Congress, despite its federal prohibition of marijuana, has not preempted the states from regulating it within their borders. On the other hand, it is perfectly permissible for the use of marijuana to be legal statewise and illegal vis-a-vis the federal government: after all, citizens can freely choose to obey both laws by not using cannabis. Granted, this reason was more upsetting with regard to the original plaintiffs in Raich, who suffered from debilitating medical conditions, than with regard to the prospective users of recreational marijuana in 2016. Still, it is a reminder that, while the State of California has decided to opt out of a criminal justice model, the feds can freely ignore Eric Holder and James Cole's memos about federal restraint in enforcement.

In other ways, gentle reader, there is nothing to stop Jeff Sessions from taking away your pot.

The progressive and libertarian outcry against prospect of federal intervention in recently-legalizing states is understandable. The Trump victory makes the marijuana victory hollow. Federal law enforcement can make, and has in the past made, the lives of marijuana growers, sellers, and users impossible, even in states with lack or no enforcement of their own. And some of the outcomes of this contradiction are downright bizarre. For example, gun salespeople are not allowed to sell guns to anyone who is a "unlawful user and/or an addict of any controlled substance"--including medical marijuana, as the Department of Justice clarified in 2011. Technically speaking, this state of affairs is legally permissible, because Americans can comply with both legal systems by not using marijuana, in which case nothing can stop them from buying guns. But to some commentators this is inappropriate federal intervention in state affairs.

This little example is nothing compared to what we might see during the tenure of a man who finds moral fault in cannabis users: a renewal of the federal war on drugs, with its futility, noxious tactics and tragic outcomes--but this time, with the disturbing history of the Nixon and Reagan eras to school police departments and states in carceral expansion. In this grotesque carnival mirror caused by the election, blue states will now be the ones crying out for state rights.

Sunday, November 13, 2016

Trumpland: Worse Than Nixon

The Trump Administration has published its 100-day plan. Read carefully: it includes mass deportations, as well as a Nixonian plan for federal funding of the police. The cycle continues.

The similarities are striking (especially the noxious racial undertones of both punitive turns,) but this is not merely a re-run of the late sixties: Trumpland is much worse than the early days of Nixonland in several ways.

First, when Nixon ran a campaign of aggressive criminal justice, there was at least partial justification for the public's support of him. He had data in hand showing that crime rates were rising. Whether or not the public felt it on an everyday basis or it was governmental manipulation, it wasn't complete distortion. It's true, as Steven Raphael tells us, that the rise in crime may not have been as dramatic as we think, because crime rates seem to have been considerably underreported until the 1970s because of incomplete FBI data collection (not all counties were included.) But this means that, even if crime wasn't rising that dramatically, there was plenty more of it than there is now.

By contrast, we are now experiencing the lowest crime rates in forty years (and, if the inacuracies from the 1970s are big, even in longer.) Trump's capitalizing on a one-year rise in murder rates is simple deception. And, again by contrast to Nixon, there isn't even a horrible redball crime in the form of the Manson murders to sway public opinion to the cause of oppressive crime control. The basis for this return to Nixonian policies is based on pure fabrication.

Second, when Nixon's policies started fueling arrests and convictions, we didn't already have so many people in prison. The arc of growth was enormous, but it grew from a much lower place. Even with recession-era reductions, prison population has only started to decline. An increase in prosecutions and incarcerations means enhancing an already grotesquely bloated criminal justice apparatus.

Third, after years of Nixonian growth, states already know all the tricks of prison construction: rather than taxing voters (who might like prisons, but don't like paying for them) they'll use lease-revenue bonds to house people.

And fourth, privatization is already well fused into the wheels of the penal machine. By that I don't mean private prisons - I mean mostly the pervasive privatization of the insides of public prisons. In a hypercapitalist America, headed by the epitome of hypercapitalism, this industry is already well-positioned to take advantage of a further increase in incarceration.

I don't think all of this is happening because the economy is better, but that certainly isn't helping. Don't get me wrong: of course I'm happy that the economy has improved. But one of the effects of this will be that a neo-Nixonian influx of money into policing and sentencing is going to create the same cycle I talked about in Cheap on Crime: we can afford to, so let's arrest and charge lots of people, and let the states worry about how to pay for incarcerating them.

We're looking at some dark times ahead. On many fronts.

Friday, November 11, 2016

When They Go Low, We Go High

ExpertFile is a service that allows the public to contact experts with queries. Today, as we're all reeling from the results of this election, I received the following query from them:

Event Inquiry Details
Event Name: fuck you cunt
Event Location: going to hell
Event Date: 11/30/2016
Event Description: hope you crash and die
Message: "voting to end the long wait for death to the fucking killers... hope you are a victim of one of them someday... karma cunt...."
Contact Details
Name: Dead Victim
Organization:
City: San Francisco
State/Prov: CA
Country: US
Email: localcemetary@aol.com
Phone:
Website:
******

In the last few days, people with far less support and social advantage than me have been on the receiving end of slurs, insults, threats, and hate crimes. This is a piece of cake compared to what many good people have been exposed to because of what they believe, how they look, or who they love.


I will not stand for it. Decent people everywhere--of which there are many--will not stand for it.


I am resolved to respond to noxious, misogynistic, threatening messages by doubling down on my commitment to criminal justice reform, the end of capital punishment, and . When they go low, we go high.

A Horrible Setback to Criminal Justice Reform

Prop. 66 is not the first "speed up the death penalty" proposition to pass in the last few years. Florida's similar "fix" was tossed out by the courts as unconstitutional just a few months ago, and let's hope this one meets a similar end.

What got me out of bed and into the office on Wednesday was this interview on ABC News, in which I express grave concerns for the deterioration in the quality of justice with the passage of 66. Capital punishment attorneys know: you cannot resolve a death row case in five years, and you certainly can't do it in Superior Court. You cannot provide people adequate representation without pouring even more money into an already costly process.

This, by the way, is why Prop. 62 was a decent application of the ballot process and 66 was not. In The Forms and Limits of Adjudication, Lon Fuller distinguishes between monocentric and polycentric problems. I think that 62 is easily of the former variety: a simple yes/no question. 66 has a lot of moving parts (and funding) that are difficult for voters to understand. Even among my students, who are considerably better legally informed than the average voter, there were a few people who voted yes on both propositions, perhaps thinking that they could live with a death penalty "fix" one way OR the other. But it is hard to consider the ramifications of creating an entire system of reviewing huge cases with enormous consequences in lower courts and hiring new lawyers en masse to represent them (with what money???).

But I want to say something also to the families of victims, like Ms. Loya, who is interviewed in the newsstory.

Ms. Loya, I am so, so sorry for your loss. What terrible grief you must feel every day. Losing a loved one so violently is such a traumatic experience, and dealing with endless litigation on the part of the killer must be gut-wrenching.

When I hear you on TV, I worry, because I have heard from other victim families that fighting to get people killed faster intensifies the pain, fills you with soul-destroying feelings of revenge, and could compound your suffering in that this proposition could become the instrument of grave injustice.

Among the people whose executions could be expedited by this new law are people who are innocent of the crimes they committed--such as Shujaa Graham and Paris Powell, innocent men who spent long years on death row before their exonerations, and whom I met campaigning against Prop. 66. And these people also have mothers, like you, who will live to see their sons die violently, like you.

It is so hard to think beyond your personal pain. But I am so concerned about all this additional and unnecessary suffering this will bring to other people, just like you. I can't see how this adds up to a net good in the world.

I feel for you and it breaks my heart to see you feel your loss so keenly after so many years. And at the same time, so that others will not know such losses at the hand of their government, I will continue to fight for the repeal of the death penalty in my lifetime.

Thursday, November 10, 2016

Wear a White Rose

When my students arrived to class today, they were greeted with dozens of white roses--one at every seat. We talked about the election.

Our Muslim students talked about their family's fear. Our African-American students talked about feeling like other Americans see them as less than human. Our immigrant students talked about how they had thought of America as a beacon of hope and diversity, only to wake up to a horrible reality. Our students who are parents talked about the difficulty of explaining what happened to children and giving them hope to go on.

I talked about how months of my work on Prop. 62 - time, talent, energy, verve, money--yielded negative returns: the failure of Prop. 62 combined with the horrifying and worrisome Prop. 66.

We talked about how difficult it is to get up in the morning and gear up for the work we so desperately need in these times.

I shared two things that have been personally helpful to me. One comes from my Buddhist practice, in which one traditional form of meditation involves "touching the Earth for our adversaries." Our adversaries and enemies, formidable as they might be, reprehensible as their actions are, abhorrent as their values are, provide us with an important service: they remind us of our strength, our preferences, our values, and our actions. The opportunity to resist gives us an opportunity to examine and solidify our own intentions about what's right in the world. It is a reminder of things greater than the self, of the impermanence of everything, and of how the mind (of an individual or of a society) has a limitless capacity for love and hate, generosity and greed, valor and fear. Our adversaries remind us to make mindful choices about our own values and strengthen our resolve.

The other one comes from growing up under the shadow of the Holocaust, in a country where upset and frustration and anxiety over the rise of fascism and bigotry comes in a healthy dose every four years since Yitzhak Rabin's murder. What I learned from living in Israel, and from my grandma who fled Frankfurt in the 1930s, is that in times of great crisis and fear lies an immense opportunity to protect and help the persecuted and the downtrodden. It is in times like this that the social advantage, skills, and character of people like Oskar Schindler or Raoul Wallenberg can make a real difference in people's lives. My students are uniquely positioned--due to their education and skills--to help and protect others, some from their own communities and some from other communities that may face perils and threats in the next few years. This means that everyone's marginal utility in the world will grow manifold. Whether it's working a public service job, picking cases, or donating a portion of a comfortable income to the cause of justice and civil rights, they--and you--have the power to make intentional decisions that can have a dramatic impact on your families, friends, neighbors, and fellow humans.

To keep a ritual and symbolic reminder of how much we can do to help, protect, and champion the people and values we care about, I am going to be wearing a white rose on my lapel from now on. The White Rose Society (die Wei├če Rose) was a non-violent, intellectual resistance group in Nazi Germany led by a group of students and a professor at the University of Munich. The group conducted an anonymous leaflet and graffiti campaign which called for active opposition against the Nazi regime. Their activities started in Munich in June 1942, and ended with the arrest of the core group by the Gestapo in February 1943. They, as well as other members and supporters of the group who carried on distributing the pamphlets, faced unjust trials by the Nazi People's Court (Volksgerichtshof), and many were sentenced to death or imprisonment.

The group wrote, printed and initially distributed their pamphlets in the greater Munich region. Later on, secret carriers brought copies to other cities, mostly in the southern parts of Germany. In total, the White Rose authored six leaflets, which were multiplied and spread, in a total of about 15,000 copies. They branded the Nazi regime's crimes and oppression, and called for resistance. In their second leaflet, they openly denounced the persecution and mass murder of the Jews. By the time of their arrest, members of the White Rose were just about to establish contacts with other German resistance groups like the Kreisau Circle or the Schulze-Boysen/Harnack group of the Red Orchestra. Today, the White Rose is well-known within Germany and worldwide.

I've been giving away white rose lapel pins all day long, and am happy to send you one, reader, if you email me with your address. Wear it as a symbol of hope and commitment to compassion and action even in dark times.

Grieve as you need, and then roll up your sleeves and let's get to work.

Saturday, October 29, 2016

With Great Power Comes Great Responsibility

Wry Craigslist ad created in the aftermath of the Malheur takeover acquittal.
My first reaction upon hearing of the acquittal of the defendants involved in the armed takeover in Oregon was probably similar to yours, gentle reader: I saw no legal argument for acquittal and it was plain as day to me that what happened here was jury nullification (despite what this juror says here, I find myself incredulous that it was difficult to deduce intent from what transpired there.) It was a powerful reminder of the unchecked and untamed potential that lies beneath the legal structures we have built. The right to a jury of your peers also has a built-in, hidden-from-sight extension, which is the right to vie for the kind of peers who might be sympathetic to you even when the law is not.

The web is ablaze with cynical commentary and comparison memes, and arguments of white privilege. But what has happened here is no different--legally speaking--than what happens when people follow The Wire creator David Simon's call, or, for that matter, critical race theory scholar Paul Butler's call, to nullify in drug cases, or in cases involving defendants of color.

The constitutional trial rights we all have apply universally: there is no boilerplate section in the Bill of Rights that restricts them only to defendants and causes we like and support. This is, in part, why I opposed the ban on grand juries in police violence cases and signed a letter against Judge Persky's recall: When we take away justice and discretion "only" in cases of defendants we dislike, like police officers or entitled frat boys, we shouldn't be surprised when these rights disappear for defendants we do like and support.

Nullification is not a constitutional trial right, but it is an implicit power that comes with the secrecy of jury deliberations, their exemption from providing reasons for their decisions, and the inability to appeal acquittals in the U.S. criminal justice system. With great power comes great responsibility, and when we call for the use of this power for causes we believe in, it shouldn't be too shocking that people who vastly disagree with us use the same power for causes they believe in.

So, is nullification the tool of armed white supremacists, lynchers, and antigovernment insurgents, or of racial justice protesters and war-on-drugs opponents? There's no way to measure who uses it more, because jurors interviewed after trial are very unlikely to admit that they nullified. Everyone wants their decisions to be perceived as legitimate. Without actually knowing what happened in the jury room and inside the head of each juror, we can never know with absolute certainty--even when it seems obvious--whether they nullified, misunderstood the law, misunderstood the (often badly phrased) jury instructions, or any combination of these factors. We are also unlikely to be able to reproduce and measure this in mock jury experiments, because I think jurors nullify in cases that matter to them a lot emotionally, and experimental conditions will not produce that amount of passion and anguish. In the absence of data on this, we have to assume that juries do this, and keep in mind the knowledge that it can be used by anyone, for any goal, to support any political agenda.

The one thing to learn from this, I think, is that the outcome in highly political contested cases depends on the skills, science and juju that went into the jury selection process, more than on those that went into the trial--and that holds true for all of these cases, sympathetic and antipathetic alike. Which is an excellent reason for every lawyer, on either side of the adversarial process, to learn the art and science of voir dire.