Tuesday, December 31, 2013

Smarter Sentencing Act of 2013: Just as dumb as the Controlled Substances Act of 1970

The sponsors of the "Smarter Sentencing Act of 2013" may be forgiven for succumbing to the temptation to label their bill--and by association, themselves--as "smarter". A label does not change the nature of a bill, however. This labeling attempt should have been preceded by an attempt to make all our drug laws smarter.

Admittedly, the Controlled Substances Act of 1970 (CSA) was one of the stupidest laws ever written, unless the intent of the law was to imprison millions of Americans and give the prison industry an unfunded subsidy. CSA gave a subsidy to the prison industry by increasing the number of prisoners geometrically. The prison population of U.S. federal prisons (the prisons directly affected by CSA) has increased by 800% in the last 30 years. There are now 8 times as many people being held in federal prisons as there were in 1983, or about 2.3 million people total.

The authors of the Smarter Sentencing Act must have analyzed CSA and drawn the following conclusions:
  • CSA was stupid because the determinate sentencing rules it established were too severe.
  • CSA was stupid because the number of potential prisoners created by the law was higher than the number of prisoners who could be accommodated by federal prisons.
  • CSA was stupid because it costs our citizens too much to put 2.3 million people in prison and keep them there year after year. Annual costs are now about $80 billion.
These conclusions are obviously valid; they are the issues addressed by the "Smarter" Act of 2013. The authors of this bill should not consider themselves "smarter" because they recognize these facts, however. The facts about prisons and incarceration are freely available to anyone who can read. They have been available for years. The statistics have gotten much worse, but the underlying facts remain the same.

True or false: CSA was stupid because the determinate sentencing rules it established were too severe

The sentences handed out under the determinate sentencing rules were too severe, but that wasn't the only problem, or even the most important problem. The law itself was fatally flawed. The rules required judges to sentence non-violent offenders to terms of many years in prison. Many of these offenders were not the habitual criminals that the law was intended to catch. Instead, they were individuals caught up in criminal activities because of ignorance, poverty, and lack of opportunity. Imprisonment did not help these people. In many ways imprisonment made their problems worse, because citizens returning from incarceration find it more difficult to find employment, housing, and opportunity than they ever did before.

These fundamental issues are not addressed by the new "smarter" act. Reducing determinate sentences by 50% may save money but it is a cruel hoax perpetrated on people who need our help.

True or false: CSA was stupid because the number of potential prisoners created by the law was higher than the number of prisoners who could be accommodated by federal prisons.

The intent of the supporters of CSA was to put more people into prison. They knew this would cost more money, but they were pleased by that because they would be beneficiaries of the money spent on housing more prisoners. The stupid people were the backers of the law, who did not foresee the problems associated with it. These same people are now backers of this new, "smarter" law. They believe that they improve the law by tweaking it. They can't.

Meanwhile, the people who benefit from mass incarceration will still oppose any change to existing conditions.

True or false: CSA was stupid because it costs our citizens too much to put 2.3 million people in prison and keep them there, year after year. Annual costs are now about $80 billion. 

Undoubtedly true. Whether we will see fewer people in prison by reducing their determinate sentence rules is not clear, however. If a person serves two years in prison instead of five years, will he or she have a better chance of staying out of prison? Returning citizens will face the same barriers to living normal lives as before, under the "stupid" CSA. They will still find it harder to get a job. They will still find it hard to pay off the extravagant fines imposed by CSA which are untouched by the "smarter" bill.

Under the CSA, a crime that deserves 15 years incarceration carries a fine of $25,000. Where will a returning citizen acquire such a sum? Only through more illegal activities, beyond doubt. CSA is stupid because it forces returning citizens into a life of crime to repay the fines it imposes on them. The "smarter" law does not address the issue of these fines and therefore is no smarter than CSA.

Racism in CSA and "Smarter" law.

Fifty percent of prisoners in the US are either African-American or Latino. An African-American male is 7 times as likely to be in prison as a white male. A Hispanic male is 2 1/2 times as likely to be imprisoned as a white male. These statistics strongly argue that there is a racial disparity in our justice system. A smarter sentencing law would recognize this disparity. A law that does not take into account this disparity cannot reasonably be considered smarter, no matter what its proponents call it.

ACLU support for "Smarter" law.

The ACLU supports the new, "smarter" law. This is a compromise position, no doubt. There is no compromise position between right and wrong, however. The ACLU should not support half-way measures, such as this  one, that only delay the institution of real reform.

Monday, December 16, 2013

Racism and racial profiling in the District of Columbia

Racism is a disease that infects our whole society. This infection has caused our laws to change so that prison terms are vastly longer than they ever were before. Our prisons and courts are filled with non-violent drug users whose primary offense is the color of their skin.

Approximately as many whites use illegal narcotics as African-Americans, but 90 percent of people arrested for drug offenses in DC are African-American.1 In DC, an African-American is nearly 4 times as likely to be arrested for drugs as a Caucasian. This is no accident. When Metropolitan Police officers go looking for arrests, they don't go to Georgetown, they go to Anacostia, even though as many people use drugs in one area as in the other.

To their credit, the DC Council has been addressing this problem, most recently by decreasing the maximum jail-time for first-time marijuana offenders and proposing to legalize possession of marijuana. They now continue their efforts by proposing the Record-Sealing for Non-Violent Possession of Marijuana Bill. This bill is necessary because many people are currently permanently handicapped by their criminal records, which make it difficult for them to find employment, rent an apartment, or get a job. This bill seals the criminal records of people whose only arrest was for possessing marijuana. I am particularly gratified to see that the Record-Sealing bill has seven co-sponsors. These lawmakers are willing to stand up be counted in the fight against racism. The D.C. National Lawyers' Guild strongly endorses this bill.

I can only find one fault with these bills. They don't go far enough. The epidemic of racism has thoroughly infected our justice system for years. The effects of this epidemic are insidious and far-reaching.

Anti-drug laws, combined with determinate sentencing laws, still prescribe preposterously long sentences of up to 30 years in prison for non-violent offenders.2 The laws also exact enormous fines. When they are released from prison, ex-offenders—returning citizens—often have huge debts and no way to repay them.

The plight of our fellow citizens goes beyond drug offenses, however. The same study that found African-Americans accounted for 90 percent of drug arrests in DC also found that they accounted for 80 percent of disorderly behavior arrests, 70 percent of traffic arrests, and 80 percent of arrests for "other assaults", a category that includes the least serious kinds of assaults.3

Legalization of a behavior does not automatically lead to fewer arrests. Instead, it appears that police find new causes for arrest. For example, in 2010 the Council removed "loud and boisterous" behavior from the "disorderly conduct" statute. In 2011, "disorderly conduct" arrests decreased by 16%, but there was no discernible decrease in overall arrests, suggesting that police officers may have found other pretexts to make arrests.4

These arrest figures strongly suggest that African-Americans are being targeted by police on the basis of racial characteristics, so-called racial profiling. To counteract racial profiling, we need to do more than pass this one bill affecting one small category of non-violent crime. We should extend this bill to all those who have criminal records for minor crimes. We need to give returning citizens a chance to rebuild their lives and support their families.

The entire War on Drugs has attacked the problem of drug use by treating the symptom—drug use itself—instead of the causes. Sealing arrest records, while a good idea in itself, only treats one symptom of the problems caused by racism. The problem starts with selection of targets for questioning by police—racial, or bias-based, profiling.

While police regulations contain a definition of bias-based profiling5, the D.C. Code does not. The Code lists only “discriminatory treatment” as a cause for investigation by the Police Complaint Board. This vague description should be amended by adding a detailed definition of bias-based profiling, as well as by providing a private right of action for any citizen who feels he or she has been victimized by it.6

Finally, the District of Columbia should work toward better relations between the community and the police department by establishing an independent Inspector General of Police, similar to the office of Inspector General created by New York City.

We cannot prevent every injustice caused by racism. But we can limit the number of injustices. The D.C. Council has the opportunity to do so. Will they take advantage of their opportunity?

1 Washington Lawyers' Committee for Civil Rights and Urban Affairs, Racial Disparities in Arrests in the District of Columbia, 2009-2011: Implications for Civil Rights and Criminal Justice in the Nation's Capital 13 (2013).
2 D.C. Official Code §48-904.01.
3 Id., 18, 20, 22.
4 Id., 21.
5GO-OPS-304.15 (March 19, 2007).
6See NYC Local Law 71 for an example of how NYC has dealt with the problem of bias-based profiling.

Sunday, December 8, 2013

You Can Make Money on the Internet

You can make money on the internet. Perhaps you have a business that could use some extra sales. Perhaps you have a hobby that you love to write about. Or perhaps you have a skill that needs to be promoted.

The internet can help you with all these things. Furthermore, the internet can help you negotiate the tough times of rapid change that we're going through right now and will most likely be going through for some time to come.

What makes the internet so valuable?

The internet dissolves boundaries of time and space. In the recent past, it took a letter up to a week to reach its destination, at a cost that increased dramatically if you wanted the letter to get there faster. Now, thanks to the internet, no matter what their destination, letters arrive a few seconds after you send them. Since time is money, you should be able to use this instant communication to your advantage.

It used to be that your business had to have a good location to make money, and for many businesses this is still true. But if you can locate your business on the internet, all locations are the same. If you think that you have to have a well-known brand or a catchy sounding internet address to succeed, consider some of the brands that have succeeded. Who ever heard of Yahoo before the company hit it big? Google used to be an obscure mathematical term. Amazon was the name of a large river. All these companies are progeny of the internet, and they are among the most successful companies in the world.

Many internet services are free, or almost free.

1. Webmail. Webmail is email that lives on the web. I use google's webmail, gmail. Its main advantage is that you have plenty of space on their server so you never have to throw away a message--you know, the message that you thought you were finished with but turned out to have valuable information. Gmail is free, although there are advertisements that appear unobtrusively in the upper right hand corner of the message page. The ads are interesting in themselves. They are posted by a google product called adwords. If you read them in relationship with your messages, you will notice that there are key words in the message that trigger the ads. Not all of them make logical sense, but many do, and when they do, you will find you are looking at an ad intended specifically for you.

A word of warning about email. This is a powerful tool for keeping in contact with your customers and informing them of new products. But it is also the primary method many people have for keeping in touch with friends and conducting business. If you send out an occasional email to your mailing list, you will probably be accepted or even welcomed. But if you cross the line and send out too many messages, especially if they have nothing new or important to say, your emails will be labeled as spam and cut off. So be careful to send actual communications and not just boilerplate advertisements.

2. blogger.com (blogspot.com)--this is Google's free blogging service. Once you have a gmail account, you can also have a blog, also called a weblog. It could also be called a diary, but that sounds old-fashioned, doesn't it? The idea is to attract a group of followers and give them daily reports on your business, or your hobby, or whatever. On the internet, you have access to millions of potential customers, but you also have thousands of competitors, so you must promote your business constantly. Weblogs are a good way to do that.

Weblogs are better than direct emails for this purpose because people do not expect personal communications from weblogs. They go to your site to find the latest in what you're doing. But you must make your weblog attractive to them so they keep coming back. Keep updating the material at least once a week. If that seems like too much work for you, perhaps you should avoid starting a weblog.

3. Facebook. Facebook is the leader among a group of social networking programs. It currently has 250 million users and continues to expand rapidly. It is particularly popular in the US and Brazil, but has users all over the world. Most people use Facebook to network with their friends and make new ones. The level of communication is very personal, with comments like, "I just got to work" or "I had a great vacation". But there are also opportunities to make business connections. You can create a business page on Facebook and you can ask all your contacts to become "fans". They will then receive all the updates you put onto the business page.

Facebook has advantages as well as drawbacks. The main drawback is that you need to get all your customers to sign up. Of course, with 250 million users on Facebook right now, the chances are good that some of your customers are there already. Besides, isn't this is the major problem you have right now? Getting people to become customers?

Facebook's primary advantage is that it places your business in a comfortable environment and makes it easily accessible to your clients. Facebook makes it easy to put interesting content on your business page. It also has advertising that targets its users, which will be very cost effective if the people on facebook are potential customers.

4. Another free resource is YouTube. If you have the ability to create videos, this could be very useful for your business. A big advantage of the internet is you don't have to squeeze all your information into a 30-second time slot. Once again, the internet expands the boundaries of time and space. Your video can be as long as you want. You can make infomercials and post them without any extra charge for their length. One possibility would be to use YouTube as a trial audience. Find out which parts of your video are effective and which are not.

It would be better, perhaps, to store your videos on YouTube and have your customers access them from somewhere else. YouTube users tend to enjoy celebrity gossip and crude humor, so you might not care what they think about a serious business proposal. But YouTube lets you put a video onto a web page or a blog or a Facebook page just as you would put a picture there. So you can control the way a person watches your video and you can control the context, asking your own questions and choosing your own audience.

Thursday, December 5, 2013

ACLU court case brings prison reform to Mississippi

[this case is discussed in greater detail here]
In 1989, two HIV-positive prisoners brought a pro se law suit against the Mississippi Department of Corrections ("MDOC") for failing to provide them with adequate medical care at Parchman Farm. After losing their case, they won on appeal (Moore v. Mabus, 976 F.2d 268 (1992)) the right to receive prescribed medical care and be represented by an attorney. This was only the beginning of their troubles, however. MDOC continued to provide inadequate treatment and their court-appointed attorney refused to provide adequate representation.

In 1999, the ACLU filed a motion to substitute counsel on behalf of 110 HIV-positive prisoners at Parchman. Once again, the courts were reluctant to assist the prisoners. The ACLU enlisted the aid of Holland & Knight pro bono  attorneys. They also began negotiations with Robert Johnson, the newly appointed commissioner of MDOC, to remove their clients from segregation. Johnson assembled a task force of local groups and prisoner family members to discuss the issues and ended up agreeing with the prisoners' representatives Johnson then instituted regulations that integrated the HIV-positive prisoners with the general prison population.

It wasn't until 2007--after numerous trials and more discussions--that MDOC began instituting reforms for the entire prison. These reforms included a clearly defined incentive program that permitted prisoners to earn their way out of segregation--solitary confinement--and into the general population. Prisoners were permitted to take classes and play sports. General mental health services were greatly expanded.

Conditions at Parchman Farm in 1992 were similar to conditions at Red Onion Prison in 2013. Neither prisoners nor lawyers gave up trying to better their conditions over 15 years of litigation, negotiation, and retrenchment. We do not know the extent of prisoners' rights violations at Red Onion. The first step, however, should be a law suit on behalf of prisoners undertaken by the NLG and whatever other agencies or pro bono  attorneys are willing to join.


Tuesday, November 26, 2013

Obama wins a big victory for world peace and stability; his detractors go nuts

Iran is the most powerful country in the Middle East. It has oil wealth and a large population. It holds a strategic location on the Persian Gulf. Iran's position between the Soviet Union and the Arabian Sea made it a critical geopolitical asset.

In 1953, the US engineered a coup in Iran to prevent the Soviet Union from gaining influence there. The American government believed Iran was important enough in their Cold War against the Soviet Union that they risked war and international enmity to assure that the Soviets could not take over the country.

Sixty years have passed. The Cold War is over. They US did not "win" the Cold War as is often proclaimed. The stalemate between the Soviets and the US simply ended. The US was left with a strong military but their army never went to war against the Soviets. When the US army did go to war, against the Vietnamese, it lost.

Today, the US military force is a relic of the Cold War. Advocates of using military force have been searching for a target at which to aim their bombers and warships. They seized Iraq, hoping next to attack Iran. US militarists, led by John McCain and Dick Cheney, tried vainly to build public opinion against Iran. Americans no longer trusted promises of easy victory and vast treasure.

Barack Obama came to office promising to end the era of military adventurism that began after World War II. He proposed using diplomacy instead of war to deal with foreign difficulties. The country he wanted most as a partner was Iran, primarily because of its history of supporting terrorist groups like Hezbollah in Lebanon and Hamas in Gaza. Obama's diplomatic corps worked tirelessly in secret to get Iran to agree to abandon their nuclear ambitions.

Finally, over the weekend, Obama's peace initiative bore fruit. The Iranians made some concessions and agreed to take part in serious talks about giving up their nuclear ambitions in exchange for relief from crushing international sanctions. In addition, Iran agreed to help broker a settlement in the fierce civil war raging in Syria.

War mongers in Israel and the US have been using the threat of Iran's nuclear weapons to stop progress in Syria, Palestine, and other Middle Eastern hot spots. With Iran removed as the great bogeyman, these militarists no longer have an excuse for the vast expenditures they have demanded. The diplomatic stalemate in the Middle East, so intractable for so long, has become suddenly less so.

Politicians whose power depends on keeping Iran as an international pariah are scrambling to denounce the peace talks in every newspaper and on every television channel. They have seen the writing on the wall. Their sweet deal is over, or soon will be. Military spending will fall. New weapons systems will be cancelled. Weapons suppliers will lose their contracts. This new peace initiative may have the same effect on the American military industrial complex as the end of the Cold War did on the Soviet Union.

The world is still a dangerous place. We are beset by serious problems. But military force cannot be used to resolve most of them. We need to turn our efforts toward real problems, not fake problems invented by militarists who make money from causing human suffering.

Monday, November 25, 2013

UN Climate Change Conference Ends in disarray

Americans have a do-nothing congress. But the American congress actually does more than the UN Framework Convention on Climate Change (FCCC). The same kind of intractable problems exist in both bodies.

The FCCC exists to deal with the problems of Climate Change. It has established several facts in the past, and most countries in the world agree with these facts: Climate change is real, climate change is man-made, and the effects are being felt right now. The countries of the world cannot agree what to do about these facts, however.

The most intransigent parties are the developed nations of the world. We will call these nations the Rich nations. The most exasperated are all the others, the Poor nations. The recent typhoon in the Philippines revealed the current state of the world in brief. An enormous typhoon struck the Philippines, causing billions of dollars in damage. The Philippines cannot afford to keep cleaning up after storms like this one. Without considerable help from the Rich nations, the Philippines will slip into a permanent recession. Cities will vanish. People may even revert to pre-civilized ways of life.

But Rich nations don't see this as their problem. It's a Poor nation problem and they will have to deal with it. Poor nations want to assess damages against Rich nations, who have profited from the industrial revolution for four hundred years. Rich nations won't admit liability.

Australia's new Prime Minister has proposed abolishing its tax on carbon. He argues for this abolition on grounds that it will save Australians money on their energy bills.

Christine Milne, leader of the Australian Greens puts it succinctly: 
Not only are we abandoning any real ambition to reduce emissions, but at the same time we’re saying we won’t even put up money to help developing countries around the world mitigate and adapt to global warming.
It has often been suggested that nothing short of an international catastrophe, like an invasion from outer space, will convince the people of Earth to stop fighting among themselves and work together to save the planet. Climate change is just such a catastrophe. People are not reacting well to this test, however.

The world is facing a crisis. Both Rich and Poor countries need to recognize the crisis and work to allay it. Rich countries can escape their responsibilities right now, but they don't have long before they must face the realities of climate change, because there is only one world and we all share it.

Friday, November 22, 2013

Let us remember

John F. Kennedy was assassinated 50 years ago today. Two whole generations have grown to maturity without knowing what that felt like.

I was thirteen in 1963. I was in gym class at Berkeley High School when I first heard that the president had been shot. I could not believe it. Young men were always lying to each other anyway. So I got dressed and left the locker room in a state of disbelief, almost numb.

Outside, the first adult I met was an African-American, a janitor at the high school.

"I heard the president was shot," I said. "But I thought it must be a joke."
"The president is dead," he replied. "You don't joke about a thing like that."

I was a Democrat who was justly proud of our youthful president. He was a great public speaker. I had read his book, Profiles in Courage, which he had written while recuperating from serious surgery. The book is a collection of thumbnail sketches about Senators in American history who had been presented with difficult choices. All these people had chosen the principled path, although some of them had been removed from office because of it.

Reading over the list of Senators today, I can't see much heroism there. For example, Kennedy and Sorensen (who aided in writing Profiles) praised Daniel Webster for engineering the Compromise of 1850 and holding the union together. In reality, the Compromise guaranteed the outbreak of Civil War, since the Fugitive Slave Law (part of the Compromise) was extremely unpopular in the North. Webster abandoned his moral principles--against the injustice of slavery--and handed a short-lived victory to Southern slaveholders.

As I left the gymnasium and headed for my next class, I noticed the flags flying at half mast, which confirmed for me the president was dead and not just wounded. I needed the confirmation because I could not believe the event. My entire world was shaken. I could not accept that people were assassinated in the modern industrial age. 

I ran over to the office of the Berkeley Gazette, my hometown newspaper. There I purchased a copy of the paper fresh from the presses and emblazoned with a headline declaring in huge letters that the president was indeed dead.

I still remember where I was and what I was doing when Kennedy was assassinated because there is no way I can forget it. It seemed to me that history had come to a fork in the road and had taken the darker, more menacing road.

Wednesday, November 20, 2013

More Bad News For George Zimmerman

George Zimmerman, the killer of Trayvon Martin, has fallen on hard times. Zimmerman was the darling of the right wing echo chamber while he was on trial for killing Martin, a young African-American. Mark O'Meara, a high-powered, high-cost lawyer, defended him against the charge of murder without asking for any money up front. Thousands of fans of Fox News, Rush Limbaugh, and their ilk, sent money to Zimmerman's defense fund. The man himself was regularly seen on tv, declaring his innocence to all the world. And Zimmerman was acquitted.

Now, Zimmerman is on trial again. This time he is accused of aggravated battery, domestic violence battery, and criminal mischief. Zimmerman says he is indigent and has debts of $2 million. He is also involved in a divorce case in which his wife initially claimed he assaulted her and pulled a gun on her, but his wife decided not to press charges in that case.

Mark O'Meara, the high-priced lawyer who successfully defended Zimmerman in the Martin case, has stated that he is no longer Zimmerman's lawyer. Very probably it is he to whom Zimmerman owes $2 million. The donations from right-wingers have dried up. Zimmerman is on his own.

Aggravated assault is a class 3 felony under Florida state law. The crucial piece of this felony is the charge that Zimmerman brandished a gun before pushing his girlfriend out of the apartment. Under mandatory sentencing laws, the minimum sentence for conviction of this crime is 5 years in prison.

Zimmerman's behavior after his acquittal on murder charges shows just how broken the criminal justice system is right now in Florida. Criminal penalties are supposed to deter people from committing crimes. When the justice system allows people to escape punishment for crimes they obviously commit--no one disputes that Zimmerman shot Trayvon Martin to death--the laws have just the opposite effect. People are encouraged to commit crimes since they can see that criminals go unpunished.

Since his acquittal, Zimmerman has been involved in two violent incidents involving allegations of using firearms.

Florida's system of criminal justice is broken. Its "stand your ground law should be repealed. Its mandatory minimum penalties should be repealed. Its "three strikes" law should be repealed. The penalties Florida exacts on people who have served time in prison need to be seriously diminished, including its refusal to let ex-felons vote.

This post partly based on reports from NBC News.

Monday, November 18, 2013

Marissa Alexander gets a retrial

Marissa Alexander has been granted a retrial in a case that has gotten national attention. Alexander shot a gun at her husband, whom she claimed was threatening her life. Alexander also claimed that he had abused her physically. It was her first offense. A jury found Alexander guilty of discharging a gun in the commission of a felony. Under Florida law, this conviction carries a mandatory sentence of 20 years in prison.

Florida's mandatory sentencing laws have filled its prisons to overflowing. The first such laws passed in 1979. At that time, Florida had about 10,000 inmates. In 2010, it had over 100,000. The incidence of crime has been falling in the state and the U.S. for many years, yet still the prison population increases.

African-Americans outnumber whites in Florida prisons 4.4 to 1. In the general population, blacks represent only 16 percent of the population.

There is a remarkable disparity in Florida's gun laws. Under its "stand your ground" law, a woman has a right to kill someone if she believes her life is in danger. But under Florida's mandatory sentencing law, if a woman does not believe her life is in danger, even if she misses entirely, as in this case, she can be sent to jail for 20 years. The question arises, how can you tell whether she thought her life was in danger or not, especially if she claims she did think it was?

An appeals court granted a retrial in this case because the judge mistakenly told the jury that Alexander had to prove she was acting in self-defense, but the law actually requires the prosecution to prove that she was not defending herself.

A comparison of this case with the Trayvon Martin shooting is instructive. In the Martin case, the shooter was declared not to be the aggressor, even though he was following Martin for several minutes before catching up to him. In the Alexander case, the defendant was declared the aggressor after she walked from the garage, where the gun was stored, to the living room, where the shooting occurred. Both defendants claimed they feared for their lives.

Martin's killer was acquitted. Alexander will likely have a chance at a plea bargain during her second trial, and may end up serving very little prison time beyond the 3 years she has already spent in prison.

Laws should be reasonable. A reasonable person should be able to tell whether a law has been broken or not. Laws should not be able to be twisted so that a white man with a good lawyer goes free while a poor African-American woman goes to prison after committing similar, if not identical, offenses.

The Alexander case is hardly the only abuse of a mandatory sentencing law, but it is a blatant one.

Friday, November 15, 2013

DC Councilman David Grosso sponsors forum on Criminal Justice System

On November 14, DC Councilman David Grosso, in cooperation with the ACLU, University of DC School of Law, NAACP, and Howard University School of Law, presented a forum on Race and Gender Disparities in the DC Criminal System. Members of the forum spoke on a wide range of topics, however.

The occasion for the forum is the publication of a report by the ACLU and the Washington Lawyers' Committee for Civil Rights and Urban Affairs. Several other forums have been held and more will undoubtedly be held in future.

Grosso has introduced several bills concerning criminal justice before the DC Council. One bill would legalize marijuana and set up a drug supply system to regulate the price of drugs. Most of the high price of illegal drugs stems from the difficulty in smuggling them into the country and evading police detection. Legalizing drugs would make drugs cheaper, although studies have shown that it would not cause drug use to increase. Another bill proposed by Grosso would make it illegal for a pregnant woman in prison to be placed in shackles. This bill is just common sense. Grosso deserves our applause for recognizing some of the ills of our society and trying to help rectify them.

Seema Sadanandan, a program director for the ACLU and a member of the National Lawyers Guild, was the most voluble member of the panel. She spoke persuasively about the need to change the tightly integrated system of laws that oppress the minority community. Sadanandan repeatedly invited members of the community to address the meeting, which a few of them did after the panelists completed their presentation.

The listeners heard some disturbing facts during the course of a two-hour forum, many of them from panelist Deborah Golden, Director of DC Prisoners' Rights Project. DC holds 50% of its prisoners in private prisons, information that is not publicized by the DC government. The private prison industry has aggressively pursued growth policies which have included determinate sentencing laws and opposition to liberalization of drug laws, continuing the so-called War on Drugs, and passing harsh immigration detention laws, such as the one in Arizona.

One of the audience members noticed police observers at the rear of the auditorium and challenged the police to explain their tactics. A large portion of the audience loudly voiced its disapproval of DC police tactics in the minority community. The observers wisely stayed quiet and the moderator of the forum was able to restore order after a few tense moments.

Other audience members identified themselves as objects of police misconduct and told stories about youthful experiences and how they became fearful of the police. Returning citizens--people returning to the community after being incarcerated--told stories of how they got involved in crime and how they escaped from the throes of the justice system.

Some mention was made of how much money private prisons made--about $5 billion a year--and how their profits led to passage of bad laws. No one noted the fact that welfare payments were abolished at the same time that prison sentences got longer. The War on Drugs led drug offenders to be banished from public housing. Increased imprisonment made it harder to find a job. All of these pressures combine to make it difficult for minorities to lead normal lives even when they try.

Wednesday, November 13, 2013

Racial profiling: the deniers

"[There is no] shred of credible evidence that 'racial profiling' is a widespread police practice." --Heather MacDonald

Just as there are global warming deniers("global warming is a liberal conspiracy", there are racism deniers ("There is no longer any white racism"), and now there are racial profiling deniers. These people are ideologues who look first at their ideology and then at the facts. For some reason, the facts are never sufficient to affect their ideology.

Such a denier is Heather MacDonald, who writes conservative hit pieces, primarily for the Manhattan Institute, but she is also published in the New York Post and elsewhere. She writes that blacks and hispanics are targeted by police officers, not because of their skin color, but because blacks and hispanics are more often involved in crime.

Since 2005, however, better studies on the relationship between police actions and racial profiling have been conducted by police themselves. In New York City, Judge Shira Scheindlin's order in Daniels vs. City of New York (2003) directed police officers to keep better records of their contacts with the public. For the past several years, police officers have been taking time to fill out forms that indicate the exact reasons for their stop and question tactics. The results have been eye-opening.

Over 1.5 million persons were stopped and questioned by NYC police during 2010 through the first half of 2012. Of those, 80 percent were African-Americans or Hispanics. That alone was not enough to establish a pattern of racial profiling, though, as Jeffrey Fagan explained in his 150-page report entered by plaintiffs in Floyd v. City of New York. Fagan is a law professor at Columbia University who also teaches epidemiology there. He is a rare combination of lawyer and statistician.

After processing more than 4 million forms filled out by policemen during the course of their duties, Fagan concluded that almost 7 percent of the stops of African-Americans and Latinos made by police were unjustified and another 23 percent may have been unjustified but cannot be absolutely defined. Sheindlin accepted these findings when she ruled in Floyd v. City of New York (2013). These 150 pages described in great detail what the police were doing and whether force was used or contraband discovered.

Thirty percent of stops from 2010 to 2012--roughly 500,000 stops--were either certainly unjustified or almost certainly unjustified. That's enough to establish that the NYC police do indeed stop people because of their skin color. But Fagan also analyzed several other factors to determine why stops were being made, including the number of stops per felony report. Here, he found that areas with high minority populations had up to 7 times as many weapons stops per felony report. Fagan concluded either that these areas were overpoliced or that less heavily minority areas were underpoliced.

Put another way, police were using a felony crime report as a pretext to stop minorities and search for weapons, despite the fact that more whites were found to be carrying weapons overall. The police made up to 7 stops of minority individuals for each crime report.

Fagan studies not just racial characteristics of police stops, but numerous other factors. This is the most thorough statistical analysis of police tactics ever made. Judge Scheindlin came to a judicial decision based on her thorough understanding of the data reported. She concluded that the NYC police did employ racial profiling in its customary procedures.

Racial profiling deniers were not convinced, however. As noted above, these people are ideologues who are not persuaded by facts but by their preconceived notions of what should be true. Three of these deniers are judges on the panel that removed Scheindlin from the case and reversed her decision. They did not consider whether Scheindlin's decision was correct according to the law, but instead took her decision as evidence that she was prejudiced against the police. Such a point of view is not possible if one examines the totality of the voluminous evidence gathered from police records.

Heather MacDonald published an article in the Manhattan Institute's City Journal shortly after Scheindlin's landmark decision in Floyd. In it, MacDonald displays the attitudes of an ideologue and the invective of a demagogue. She also reveals that she did not read or comprehend the analysis of Fagan as published with the decision.

MacDonald stoops to name-calling and ad hominem attacks. She calls Scheindlin clueless and writes that the judge understands nothing about policing. Such an attack would not be possible for someone who had read Fagan's in depth analysis of police data, because that data describes, in minute statistical detail, just exactly what the practices of the NYC police are.

In the same article, MacDonald attacks New York State Senator Eric Adams for quoting Chief of Police Kelly as saying that the NYPD stop minorities to instill fear in them. MacDonald says Kelly could not have meant to say this because he was speaking to a group of African-American politicians at the time. This argument displays the same lack of logic as someone who claims he is not a racist because one of his best friends is black.

Racial profiling deniers act at a disadvantage by comparison with global warming deniers. Racial profiling is defined by law. Police are required to obey the law in their activities, whether or not they agree with the law.

Sunday, November 10, 2013

Football causes degenerative brain disease: NFL pays $800 million to make the problem go away

The National Football League (NFL) just settled a court case brought by former NFL players for nearly $800 million. At issue is the degenerative brain disease, Chronic Trauma Encephalopathy (CTE). As is usually the case with an out-of-court settlement, the league admitted no wrongdoing. This will make it more difficult for those players who will sue in the future.

Although $800 million seems like a large sum, it may only be the tip of an iceberg. The settlement covered only retired NFL players and did not include possible penalties for Riddell, which provided helmets for the NFL That case is still pending. Another, separate lawsuit charges that the NFL and its helmet supplier, Riddell, knew of the dangers of life-threatening brain disease that are caused by using the helmet in the NFL.

CTE causes dementia similar to Alzheimer's. It also causes depression, violent mood swings and suicidal urges. Unlike Alzheimer's, athletes with CTE are sill young. Junior Seau was 43 when he killed himself in 2012. An autopsy performed by the National Institute of Health (NIH) on Seau confirmed that he was suffering from CTE.

New diagnostic methods can reveal CTE while the subjects are still living. Using these methods, researchers at UCLA have examined 9 former NFL players and announced that at least nine have CTE. Two of the nine were all-star Mark Duper and hall-of-famer Tony Dorsett. Duper is 53. Dorsett is 59. CTE, like Alzheimer's, is debilitating but not life-threatening. The NFL may pay $50,000 a year to care for each ex-player who contracts CTE.

The NFL is extremely profitable. It should have no trouble paying the settlement in future cases. It can also require players to sign an injury waiver, which relieves a team of responsibility for any pre-existing injuries. The league has also made some rule changes that make head-to-head collisions less likely, although it may yet turn out that softer, repeated blows to the head are just as dangerous as actual concussions.

The National Collegiate Athletics Association (NCAA) faces a more serious problem. Four athletes have filed a suit alleging negligence on the part of the NCAA when it comes to handling concussions.  Concussions are a serious problem at the college level. Collegiate athletes suffered 29,000 concussions between 2004 and 2009. Brain trauma can cause lifelong problems and the NCAA may be liable for all of it.

Parents are likely to prevent their children from playing football if they believe their children may suffer irreparable brain damage. Universities have faced criticism for years about placing so much emphasis on football instead of academic performance. Lawsuits and fears over CTE may lead many colleges to abandon football.

There is a serious ethical problem as well. The NFL makes money from hard hits and life-threatening plays. In the past, the league--along with coaches, commentators, and fans--has been able to excuse such violence by saying the effects are only temporary, like a broken collarbone or a twisted ankle. With the new discoveries about how every hit to the head, no matter how slight, may contribute to CTE and an early death, the league and its fans can no longer dismiss such plays lightly.

The popularity of sports is evanescent. The accumulation of problems with football should change the game radically in the next decade. The game itself may not survive the changes.

Friday, November 8, 2013

Racial profiling deniers remove federal judge from key court case

Judge Shira Scheindlin ruled in Floyd v. City of New York that the City's policy of performing random stops and interrogations was a violation of the Eighth Amendment guarantee of Due Process.This police policy produced nearly 600,000 stops in New York City in 2008. The vast majority of the people stopped were people of color.

Community leaders in NYC and elsewhere hailed the ruling as a necessary antidote to the all-out war on minorities that police had been carrying out for years. Statistics kept by the police themselves showed that 80% of the stops were of Hispanics and African-Americans, even though whites represent 45% of the population of the city.

The most telling statistic pointing toward racial profiling is that only 5% of stops led to arrests. This fact indicates that police methods of identifying likely criminals were poor. A study conducted by Jeffrey Fagan tended to support the use of racial profiling by police. 

Another study, conducted by the conservative RAND Corporation, found that blacks were stopped less frequently than they were represented in crime-suspect descriptions. RAND used reports of violent crimes for this comparison, however, even though only 50% of those reports mention the race of the suspect. This tortured logic demonstrates that you can prove anything with statistics if your ethical standards are low enough. Scheindlin rejected the conclusions drawn by RAND.

Many liberals and minority advocates praised Scheindlin's ruling. The Republican Mayor of NYC and Chief of Police Kelly did not. They promised to appeal the ruling rather than work within the guidelines established by Judge Scheindlin to improve community relations with police. 

On October 31, three appeals court judges decided to remove Scheindlin from the case granted a new trial to the City. The ruling was based on the content of several news articles, not written by Scheindlin, but written about Scheindlin by her opponents in the case. These articles were edited to make it appear that Scheindlin had behaved unethically. The appeals court judges also pretended that Scheindlin somehow unethically maneuvered to take Floyd but this was blatantly untrue. The Federal Court routinely assigns similar cases to the same judge to take advantage of prior experience.

This case has become yet another issue that divides the country along political lines. The Conservative echo chamber has attacked a federal court for bias. Heather MacDonald, who works for the conservative Manhattan Institute accuses Scheindlin of "sheer willful ignorance", "patent ignorance of policing", and of being "clueless"--this published by a think tank that receives financing from the Koch brothers to deny global warming.  

Thursday, November 7, 2013

Virginia needs to restore the voting rights of ex-felons

The good news for Virginia Republicans is that they lost the governor's race by only a little more than 50,000 votes. The bad news is that 450,000 adults were ineligible to vote because they are ex-felons, and that an overwhelming majority of those adults would vote Democratic if they could. Virginia is one of two states that prohibits ex-felons from voting (Kentucky is the other). These people have served their sentences but are not allowed to vote.

The U.S. Supreme Court has ruled that the states may restrict voting rights of ex-felons based on the ambiguous language of the Fourteenth Amendment. The Amendment says that states may revoke voting rights for "rebellion or other crime[s]". The conservative Burger Court ruled in 1974 that this meant that the states had broad discretion in denying the vote to ex-felons. This is yet another example of how the Fourteenth Amendment, which was intended to guarantee voting rights to African-Americans, has been used to disenfranchise the very people it was intended to help. About half of the disenfranchised voters are African-Americans. Ninety percent of African-Americans who voted in 2013 voted for McAuliffe.

In Virginia, ex-felons may petition the governor to have their voting rights restored. Governor McDonnell promised to restore voting rights to more Virginians than any previous governor, but he fell well short of that goal or any real progress in reinstating ex-felons. McDonnell reinstated fewer than 4,000 ex-felons, less than 1 percent of those unable to vote. McDonnell placed restrictions on ex-convicts, such as a waiting period of 2 to 4 years, that made it more difficult and time-consuming to process applications. Thousands of ex-felons, many of them guilty of non-violent offenses, continue to be punished long after their terms of imprisonment are over.

Terry McAuliffe should be to return the right to vote to all ex-felons. This could be done by the governor acting alone. It would be better, of course, to pass a law that makes this change permanent, but the legislature in Virginia is still very reactionary.

Another way to accomplish this result is for the U.S. Congress to pass a law that applies to every state. There is no need for a constitutional amendment since the current state of affairs stems from a Supreme Court interpretation of the Fourteenth Amendment, not the Amendment itself. Once the federal government passes a law, the states will be precluded from legislation in this area of law.

At least 250,000 African-Americans would be reinstated for future elections. Republicans will have a hard time winning statewide office in Virginia until they discover a way to counteract white racism in the state and in the party.

Monday, November 4, 2013

No new tax cuts

Grover Norquist and the Republican Party in DC have banded together in an attempt to stop any new taxes ever. Government requires flexibility, just as our personal finances require flexibility. Individuals need new revenue to counteract unexpected expenses, like a child who needs help in school, or an unemployed person who needs to relocated to find work.

Governments need flexibility to face new challenges as well. In the past few years, the federal government spent large sums of money fighting overseas wars and the so-called War on Drugs at home. The Republican response to these needs has been to borrow more money instead of raising taxes. This resulted in over $4 trillion in new federal debt during the Bush administration. New spending was exacerbated by tax cuts and a severe recession that cut revenues and increased expenditures for programs like unemployment insurance.

During the Obama administration, Republicans have steadfastly refused to raise taxes or increase federal spending to spur economic growth. But taxes have been raised; they're not called taxes, but fees for service or raised penalties for traffic violations. Only taxes on the rich have been forbidden, not cuts in programs that help the poor. So the latest Republican budget has cut $4 billion from SNAP, a program that provides food to the poor. Republicans justify this action, which disproportionately hurts children and the elderly, because they claim--without evidence--that there are abuses in the program.

Progressives have taken a long time to wise up to Republican tactics. The administration has offered to offset tax cuts with spending cuts, but this policy is unwise. Any cuts in revenues, which are sorely needed, will never be replaced under the "no new taxes" program. Therefore, any programs that result in savings to the federal government should not be returned to taxpayers. Instead they should be applied to programs that are hurting the most under current Congressional leadership, programs for the poor and disadvantaged.

It is very difficult to compromise with people who are willing to jeopardize the world economy to get their way. Just as progressives must take a hard line against shenanigans like closing the government and refusing to raise the debt limit, we must also take a hard line against passing any programs favored by the Republicans without a commensurate raise in revenues to pay for them.

Sunday, November 3, 2013

NSA gets a leash

President Obama has been slow to move in countering the excesses of his predecessors. Part of his reluctance derives from the institutional nature of government. Presidents come and go, but the bureaucracy stays forever.

Whistleblower William Binney revealed in 2007 that the National Security Agency (NSA) was spying on every single data transmission in the US as well as all foreign transmissions that reached the US. No one cared. Binney was neither arrested nor charged with leaking classified information.

Obama took office in 2009. He didn't care to oppose NSA, either. The new president had plenty of reasons for his reluctance. NSA is a huge organization. The Sunday Times reports that NSA's HQ in Maryland
contains almost 70 miles of roads, 1,300 buildings, each identified by a number, and 18,000 parking spaces as well as a shopping centre, golf courses, chain restaurants and every other accoutrement of Anywhere, USA.
NSA has other facilities around the world, including the Utah Data Center where it stores all data collected from US electronic signal monitoring. NSA spent $1.5-$2 billion to construct this facility.

Reforming an agency that large would meet strong resistance both from within the organization and from its supporters, like Orrin Hatch, Senator from Utah at that time. Conservative politicians and media would have accused Obama of being soft on terrorism, although none of them know much about what NSA does or whether it is effective. William Binney claimed that the multi-billion-dollar Utah Data Center was useless because NSA lacked the ability to interpret its data in a timely manner.

But last week NSA lost its mojo. Politicians from countries around the world began complaining about being bugged by NSA. Among those complaining loudest was Angela Merkel, Chancellor of Germany and one of our most important allies. Spokesmen for the Obama administration, including the president himself, fell all over each other claiming that they never eavesdropped on anyone and that they would never do it again. They thus began making the reforms that NSA has needed all along.

The incident and its aftermath reveal a great deal about Obama and his administration. Republicans have been right to fear the president and oppose his every move. Obama plans to do nothing that Republicans can legitimately oppose--until the moment that they can't oppose it any longer.

This is known in the martial arts as the No-Fight style. You refuse to fight your opponent and let him exhaust himself by attacking you. When an opening appears, you attack. By this time, your opponent has not got the strength to resist you.

Obama's strategy goes beyond temporary measures, however. He is clearly planning to leave an administration that will not embarrass a Democratic candidate for President. George W. Bush left so much broken crockery around the world--in Afghanistan, Iraq, and on Wall Street--that his party had little chance of retaining the presidency. Obama, by contrast, is quietly cleaning up messes and refusing to become embroiled in bureaucratic struggles which he cannot win.

The next president will be a Democrat and will be able to continue the progressive agenda modestly begun by Obama.

Wednesday, October 30, 2013

DC Marijuana Decriminatlization: Chris Hayes drinks the Kool-Aid

Chris Hayes recently did a segment on his nightly show in which he discussed the Marijuana decriminalization bill currently before the DC City Council. I have discussed this issue in depth in a previous post. Hayes did his usual professional job of discussing the bill before falling into the error of believing the bill's backers' propaganda (also known as drinking the Kool-Aid).

Hayes mentioned that the bill would decriminalize simple possession of Marijuana and that the proponents of the bill claim they have the 10 votes to override a mayoral veto if it comes. He did not mention that the police department supports this bill and that the police make 9.000 arrests each year for simple possession. I estimate that each arrest nets the Metropolitan Police Department (MPD) $8,500. So 9,000 completely useless arrests net the MPD up to $76 million a year. 1 Another way to put that is that the MPD receives $76 million from the city and taxpayers of DC for its activities arresting people for simple possession of marijuana. Any way you put it, that's a lot of wasted money.

The MPD has a substantial vested interest in maintaining the status quo, and they support decriminalization, not legalization. While questioning the Police representative at the hearing, Marion Barry brought out the point that while possession might be legal, possession for sale would still be a felony, and possession for sale could apply to any amount of marijuana, even a single joint. So decriminalization would open up a different way for DC Police to harass its citizens: by charging a person with possession for sale, the police would still get a felony arrest and the individual arrested would still be injected into the court system.

Furthermore, there would still be a fine of $100 for simple possession of marijuana. Many, if not most, of the people arrested by the police for possession are poor. For them, a fine that steep would be difficult to pay, and there they are injected into the criminal justice system again.

I applaud Chris for bringing this issue to the attention of the public. He should also discuss the merits of legalization, which could save the city more than $76 million a year, because incarceration of convicted users comes from the Department of Corrections, not the police department.

1. The figure of $76 million is based on the total budget of the MPD, $410 million in 2012, divided by the number of arrests (48,000), then multiplied by the number of arrests for simple possession of drugs. This is a very rough estimate, yet it still does not include the costs of incarceration for people who are imprisoned for simple possession.

Not plagiarism: Rand Paul quotes Wikipedia

Rachel Maddow ran a segment about how bad it was for Rand Paul to quote a Wikipedia article on Gattaca. It was bad, of course, because Paul continued the dishonest Republican tradition of treating works of fiction as fact. During the run of 24 Hours, Fox commentators frequently discussed how torture works to extract information from captives because it worked for Jack Bauer, who portrayed torture as normal, effective, acceptable and glamorous. OK, I'm quoting Wikipedia there. But it's not plagiarism.

Paul cited a number of passages from Wikipedia where the omnipotent state uses the analysis of a person's DNA to determine their function in life, a subject covered much more artistically in Aldous Huxley's Brave New World. But Paul is using these passages to scare his listeners into believing that such things are now possible, or soon will be. He wants people to believe that our government is omnipotent and dictatorial, like the one in Gattaca. It's not. Paul is using a fictional example of something that doesn't exist--and never will--to attack our actual government falsely.

Paul, as despicable as his purpose might be, is not plagiarizing because he is reviewing the plot from the movie, Gattaca. Paul says at the beginning of his remarks that all these ideas come from the movie, Gattaca. His use of the plot elements are therefore not plagiarism, but fair use. He never pretends that the ideas are his own. 

Maddow showed several passages that Paul had lifted from Wikipedia's description of the movie without giving credit to the source. Wikipedia, however, does not copyright its stories. Much of its historical information comes from encyclopedias, like the Ninth Edition of the Encyclopedia Brittanica, that are now in the public domain. Wikipedia's stated purpose is to 

Empower and Engage people around the world to collect and develop educational content and either publish it under a free license or dedicate it to the public domain.Disseminate this content effectively and globally, free of charge.

The contents of Wikipedia are covered by a copyright agreement that allows people freely to 

Read and Print our articles and other media free of charge.Share and Reuse our articles and other media under free and open licenses.

When someone gives you permission to share and reuse their work, there cannot be any plagiarism of it.

Maddow should spend her time criticizing the substance of Rand Paul's speeches, not their style.

Monday, October 28, 2013

Red Onion Prison: Virginia's Shame

Despite its reputation as a liberal city, Washington, DC, sends men convicted of felonies, even non-violent drug offenders, to one of the most inhuman, degrading, and shocking prisons in America: Red Onion Prison.

Inmates at Red Onion Prison in Virginia suffer cruel and degrading treatment at the hands of prison guards and the Virginia Department of Correction (VDOC). This treatment is systematic and condoned by prison authorities and by politicians, both in Virginia and in the District of Columbia. DC courts send men convicted of felonies, both violent and non-violent, to Red Onion, because there is no prison in the district. Virginia authorities also send non-violent convicts to Red Onion and Rollins Ridge because of overcrowding.

Red Onion Prison has been the subject of investigations by Human Rights Watch, which found that the VDOC

"has failed to embrace basic tenets of sound correctional practice and laws protecting inmates from abusive, degrading or cruel treatment."1

The District of Columbia Department of Corrections (DCDOC) sends persons who have been convicted of felonies to Red Onion because DC has no prison facilities of its own. All prisoners, whether violent or non-violent, are sent to this Super-Maximum prison. As a result, non-violent persons are thrown into a violent criminal population where they are treated more harshly than those convicted of similar crimes in other prisons. VDOC apparently believes that it must control prisoners through aggressive, demeaning, and frequently violent treatment.

There are two kinds of cells at Red Onion, progressive and solitary. In progressive housing, two prisoners share a cell. Non-violent prisoners are routinely placed in cells with violent criminals. Any sign of insubordination can result in solitary confinement, where prisoners are confined in a small, windowless room for 23 hours a day, 7 days a week.

Red Onion and its nearby twin, Wallens Ridge Prison, were constructed during the administration of Virginia Governor George Allen (1984-1988), who ran for election on a severe anti-crime platform. The result of the governor's advocacy was a suite of laws consistent with American Legal Exchange Council (ALEC) recommendations that increased mandatory minimum sentences, delayed parole eligibility until 85% of the sentence is served, and made sentences up to 10 times as long. In some states, “three-strike” laws were adopted that guaranteed men who were convicted on a third felony, no matter how minor, a sentence to prison for life. These laws led to long sentences for non-violent offenders and increased the number of prisoners in Virginia's state prisons.

Red Onion and Wallens Ridge were deliberately located in a remote region of Virginia. Red Onion is 4 hours from Charlottesville, the nearest city, and 7 hours from DC. Relatives of prisoners rarely visit them there. These prisons were intended to be dehumanizing, according to Ronald Angelone, a former Virginia Director of Corrections: “It's not a nice place, and I designed it not to be a nice place.2

Human Rights Watch released its report on Red Onion in 1999. In it they described conditions at the prison but also gave details on what HRW was not permitted to do. They could not visit the prison facilities or interview prisoners or prison employees about conditions there. HRW reported that the DOC used prison walls to keep investigators out. Much of what comes out of the prison is based on rumor and hearsay. Prison officials keep facts away from media and the public.

HRW reported the following abuses in 1999:

  • Prisoners who are not incorrigible are arbitrarily deprived of the activities and freedoms available ordinarily even in maximum security prisons.
  • Prison staff use force unnecessarily, excessively, and dangerously. Inmates are fired at with shotguns loaded with rubber pellets and have been injured for minor misconduct, non-threatening errors, or just behavior that guards have misinterpreted.
  • Prison staff routinely use electrical stun-guns.
  • All prisoners are subjected to remarkable levels of control and forced to live in oppressive and counterproductive idleness, denied educational, behavioral, vocational and work programs and religious services.
  • Correctional officers and other prison staff threaten inmates with abuse and subject them to racist remarks, derogatory language and other demeaning and harassing conduct.3

The preponderance of inmates at Red Onion are black, and the staff is almost entirely white, drawn from the rural coal-mining area in which the prison is located. Many of the staff have family or community ties with each other. They have had little or no direct contact with blacks before beginning work at Red Onion.

We do not know what selection process or special training the DOC has provided staff at Red Onion. Inmates assert that many of the staff are respectful and professional. But they also describe some officers as determined to show “they can be badder than we are.” These officers are quick to use derogatory terms and slurs, quick to use force, quick to impose their authority unnecessarily and capriciously. One inmate described to HRW the relations between staff and inmates as follows: “The guards are young—for the most part—and possess the mentality of juveniles—as do most of the prisoners—and they are into the macho mentality—as are most of the prisoners. The two do not mix well.”4

Tensions and misunderstandings perhaps inevitably arise from a clash of cultures in which both black prisoners and white staff hold misconceptions and believe in caricatures about the other. But in a well-run facility with appropriate staff selection, training and supervision, those tensions can be minimized and kept from escalating into provocation, confrontations and violence. Unfortunately, white and black inmates alike at Red Onion describe an atmosphere of pervasive and blatant racism. Inmates claim that officers routinely use such terms as “boy” and “n*r”. One white inmate told HRW that an officer said to him, with reference to a black inmate with a reputation for sexual misbehavior, “What do you expect from a fucking n*r?” Another white inmate wrote to HRW that he had talked with an officer escorting him about a shooting. He described the officer as “so excited about being able to shoot ‘n*rs...’[H]e couldn’t wait to shoot some of them black bastards.”

Men in Red Onion prison have started hunger strikes on at least 2 occasions. VDOC has shut down all communications with the outside world at those times and spread misinformation to the public about how many men were protesting, what conditions they were protesting, and how they were being treated by VDOC. After the hunger strikes ended, leaders were identified and transferred to other prisons as far away as Washington state.

1Red Onion State Prison: Super-maximum Security Confinement in Virginia 1, Human Rights Watch, 1999, at http://www.hrw.org/reports/1999/redonion/Rospfin.htm#P59_713.
2Craig Timberg, At Virginia's Toughest Prison, Tight Controls C1, Washington Post, April 18, 1999, http://www.washingtonpost.com/wp-srv/local/daily/april99/supermax18.htm
3HRW 1.


Sunday, October 27, 2013

Washington, D.C. pushes bogus marijuana decriminalization bill

Anyone who's seen a Fox “News” program knows how they work. One talking head reads a news story and the others comment on it, using the most violent distortions of the truth. For instance, one might say, 89 percent of the persons arrested for simple possession of marijuana in the District of Columbia are African-Americans or another minority. Then the Fox commentator says, I wonder why that is? And another one goes into a long-winded reply about how that's the way people are.

Or, on another occasion, someone might read a news item that indicates that marijuana is neither addictive nor harmful. It is certainly not a gateway drug to anything except entanglement in the prison system. Then the other Fox commentator says, surely we can't let this dangerous drug be distributed to our children. Another Fox commentator says, certainly we can't permit this dangerous drug to be legalized.

This sort of comedy show is very popular on Fox. Firmly held opinions of the status-quo are endlessly repeated, no matter how discredited those ideas have been. But these little falsehoods were repeated in DC City Council Chambers last Thursday, October 24, 2013, where the Committee on the Judiciary and Public Safety was holding hearings on the “decriminalization” of marijuana. The ring master for this farce was Tommy Wells, who I understand is running for mayor. It was Councilman Wells's responsibility to see that witnesses were truthful and all points of view were considered. Unfortunately, Wells did not do that. Instead, he permitted reams of falsehoods to be entered into the record.

Take, for example, the study by Washington Lawyers' committee for Civil Rights and Urban Affairs. This careful study, based entirely on records of the Metropolitan Police Department, showed that 89 percent of arrests made in DC for simple possession were African-Americans. What did Wells say about this disparity in treatment of different races by the police department? He asked the witnesses for the Lawyers' Committee what could be the reason for this startling figure.

Let me make this clear. Wells did not ask the representative of the Mayor, Andrew Fois, how the police intended to fix this problem. No, Wells acted as if it wasn't a problem. Then he sat and listened while Fois explained how decriminalization would work. Mere possession would be legal, but not using the drug on the street. But possession itself would be illegal in City Parks and near schools.

Possession for sale, of course, would still be illegal. Councilman Marion Barry asked how much marijuana a person would have to have before he could be arrested for intent to sell.

Andrew Fois: Oh, any amount.
Barry: Even a single joint?
Fois: Yes.
Barry: So if you had a single joint in your pocket you could be arrested for intent to sell?

At this point one of Fois's deputies jumped in to rescue his boss from the blind alley he had wandered into. “Oh, no,” he said. “There would have to be some other evidence.” What the other evidence might be was not revealed.

When my turn came to testify, I asked the court why they were not considering total legalization. David Rosso has introduced a bill to that effect. It seemed to me inevitable that marijuana would be legalized eventually. Why not now?

Wells got a little hot under the collar. I suppose he was angry at me for disrupting his dog and pony show, where official witnesses lined up to tell Wells what a great guy he was, and what a great job the police are doing, busting 40,000 African-Americans a year, mostly for nothing at all, and how we really can't legalize marijuana right now because, as Wells explained

  1. The Congress might do something if we did.
  2. Legalization of marijuana would do nothing to halt use of more dangerous drugs.
  3. The time isn't right.

To which I would have responded (if Wells had the courtesy to ask what I thought of the matter, instead of pontificating at length about what he thinks,

  1. Congress hasn't done anything yet. It is likely, however, that the courts will do something soon about the prevalence of racial profiling, as they did in Floyd v. City of New York.
  2. Legalization of marijuana only legalizes marijuana, it is not intended to resolve all of society's drug problems. To oppose legalization because it doesn't stop other drugs doesn't make logical sense.
  3. The time is always right to stop enforcing an unjust law that police use to harass African-Americans.