Trump is not the only president to have used his commutation powers in controversial ways. As this excellent NPR piece explains, both Bushes and Clinton were criticized for misuse of their powers, as was Obama for the sheer number of commutations. What is unique about Trump’s pardons and commutations is that, with a handful of exceptions, they were given to people in furtherance of his own personal interests or to people prominently featured on Fox News. Moreover, Trump has virtually ignored the Department of Justice’s Office of the Pardon Attorney, whose function is to parse out the thousands of pardon requests it receives every year and make recommendations to the President. Usually, the President follows the Office’s recommendations, but not in this case, and as Mitch Jeserich and I discussed this morning on KPFA’s Letters and Politics, this means not only that Trump’s business partners and go-betweens are rewarded for their crimes, but also that ordinary people’s petitions are ignored and recommendations about them go unheeded. Trump’s adulation and courtship of celebrities is one contribution to his assault on the rule of law (with the notable exception of Kim Kardashian’s influence on the First Step Act). Combine all of this with Bill Barr’s jockeying of Manhattan federal prosecutors and you’ll find a continuation of the same trends.
One issue that Mitch and I discussed today was the public discourse around Roger Stone’s age and (he’s 67), and the argument that, with the pandemic ravaging prisons, he would be “put at serious medical risk in prison“. Of course age and health condition are valid considerations, but let’s keep things in context. Here’s a breakdown of the federal prison population by age. Close to 20% of them are aged 51 and older. Throw in people aged 46 and above, and you’re at almost a third of the prison population. That’s tens of thousands of people. One person, albeit famous/infamous, is a drop in the bucket, so forgive me if I’m not persuaded by the argument that this reflects sensitivity to public health.
Source: Federal Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_inmate_age.jsp
Worried about older people catching COVID-19 in federal prisons? Let them go–not only the ones that are doing time for being presidential go-betweens, but those who are doing time on a Frankenstein-like construction of enhancements and multiplications on nonviolent drug offenses (this is not as much of a thing in state prisons, but it is a huge factor in federal ones).
Speaking of state prisons, the situation at San Quentin continues to be dire. Over the weekend, they’ve seen 204 new cases. Notably, those are 204 positives out of a total of 259 tests, so things are going horribly wrong there. There are also 167 new cases at CCC (reflecting a major testing push), 15 new cases at CCI (hundreds of new tests there, as well as in DVI), 8 new cases at CRC, 5 new cases at WSP, 1 new case at SOL, 1 new case at CAL, and 2 new cases at CHCF (this is particularly worrisome because this Stockton prison houses a medically vulnerable population.)
In short, gentle readers, things are not going well. Stay tuned for updates.
In any play, however trivial, there has to be a still point of moral reference against which to gauge the action. In our lives, in the late nineteen-forties and early nineteen-fifties, no such point existed anymore. The left could not look straight at the Soviet Union’s abrogations of human rights. The anti-Communist liberals could not acknowledge the violations of those rights by congressional committees. The far right, meanwhile, was licking up all the cream. The days of “J’accuse” were gone, for anyone needs to feel right to declare someone else wrong. Gradually, all the old political and moral reality had melted like a Dali watch. Nobody but a fanatic, it seemed, could really say all that he believed.. . .
In those years, our thought processes were becoming so magical, so paranoid, that to imagine writing a play about this environment was like trying to pick one’s teeth with a ball of wool: I lacked the tools to illuminate miasma. Yet I kept being drawn back to it.
“Once again, as the latest racial travesty pierces our collective consciousness, I watch many of my white friends and acquaintances perform the same pieties they played out after Trayvon, Eric, Sandra, Korryn, Botham, Breonna. They are savvy, practiced consumers of Meaningful Things: They’ve listened to “Serial” and become expert critics of our broken criminal justice system after just one season. They’ve watched “Insecure” and can suddenly imagine life as Molly or Issa. They’ve shared the preordained “amplifying” social media post that just reads “This,” followed by a link to something profound from a black voice.. . .
“The confusing, perhaps contradictory advice on what white people should do probably feels maddening. To be told to step up, no step back, read, no listen, protest, don’t protest, check on black friends, leave us alone, ask for help or do the work — it probably feels contradictory at times. And yet, you’ll figure it out. Black people have been similarly exhausted making the case for jobs, freedom, happiness, justice, equality and the like. It’s made us dizzy, but we’ve managed to find the means to walk straight.”
Johnson, of course, falls into the trap that everyone else has fallen into, but at least he sees the trap. The combined effect of COVID-19 “content” (what an odious word) and, once more, the merry-go-round of commentaries on yet another horrific racial tragedy, have filled the social media universe with exhortations: Stay the fuck at home! Check your privilege! Wear your mask! Look within yourself! Be a good ally! Educate yourself! Flatten the curve! Dismantle white supremacy! The electronic town square holds trials for the Karens and Beckys of our time, which, given the centuries-old racist marinade we have been submerged in, are never in short supply. Everyone has an opinion about those (me included.) Everyone has an opinion about someone else’s opinion (me included.) Lists upon lists crop up in our social media feeds: Rating activities as to how safe they are (followed by the obligatory argument that the writer refrains from all of them, out of an abundance of caution); do’s-and-don’t’s for protesting “properly” are modified. Well-meaning people sincerely ask whether their white children may raise a fist on TikTok and receive fifty replies, all different. The actual issues are buried under edifices upon edifices of performance, performance, performance. Meta conversations about performance are rabbit holes. Every day some celebrity or other wears something or says something or performs some physical gesture, providing more grist for the mill. Every horrific incident of violence, racism, or racial distress, every photograph of someone out of compliance with the pandemic mandate-de-jour, becomes a morality tale, fueling endless takes, opinions, and new lists of instructions. Pandemic prevention enforcement and “how to be a good ally” have linked hands and are now the new religion of social media. We are in a panopticon, but the Foucaultian roles are reversed: we sit in the watchtower in the middle, and all around us are bloviating pulpits.
(I realize this post is falling into the same trap of exhortation, but this underscores my point–there is no end to a sea of pointing fingers. It’s turtles all the way down.)
If we were half as busy actually doing world improving things as we are performing our goodness in the public square and moralizing others, we might be in a different place. But public image is everything, and “content” (there it comes again!) must be provided. Citizens United has come full circle: now that corporations can speak like people, people speak like corporations. Everyone is a public entity, and so everyone has to issue on-point “messaging” to the public. Jeff Skilling’s infamous statement, “I am Enron,” is now true for everyone. Performance comes before feeling or doing. We must be on brand.
The problem is that “the personal is political” works both ways. It is one hundred percent true that we all play a role not only in pandemic spread, but also in the perpetuation of white supremacy. It is one hundred percent true that every revolution starts with individuals, and that individuals have the power to change the world–especially when organized. But these truths obscure other truths. “Flatten the curve” and “dismantle white supremacy” are big, pompous, vague goals, and in the absence of responsible adults at the helm of the country, there are bound to be differences in how we, the people, parse them into everyday behaviors. We’ve missed the train on testing and contact tracing, and now we’re left to pick at each other for mask violations.
The incessant chatter, be it contrite, derogatory, or both, is not “doing the work” that we are told to do. It is performing the work, which is something else entirely. It is exhorting others to perform the work. All the world’s a stage, and on this particular stage, we are performing The Crucible 24/7. There’s no escape from watching, from participating, from fretting about participating lest our flawed goodness be exposed.
I deeply understand where the urge is coming from. There are good intentions. There is a desperate need to do something in a situation in which we feel particularly powerless; we are sheltering at home, our face-to-face meeting places are closed, this online discourse is a poor substitute to our in-person conversations. As more and more avenues to do good close, either because they are impossible or because they are severely criticized, we are clutching at straws. These bursts of personal propaganda are the best thing we have, and we figure they are better than nothing, because silence is also a problem. And most importantly, there is pain. Searing, unbearable pain and grief. Grief for the sick, grief for the dying, grief for the people being killed and injured and ostracized and ignored. Grief and guilt. It feels overwhelming to sit with it. We take to our keyboards to find some relief, to tell some story about it, to remove the center of grief from our hearts to our heads to our keyboard. But verbose descriptions of grief are not the grief itself.
Can we take an intermission? Not from the work itself–improving the world is the project of a lifetime–but from the performance of it? Can we stop obsessing about our goodness and the goodness of others? Can we stop “messaging” so that we can actually feel something? Can we quiet our nimbly typing fingers to listen to the cries of the world, of friends and neighbors born to disadvantage, of our dying planet? Can we quiet them long enough to hear our own hearts quiver in compassion?
In a recent decision, Ramos v. Louisiana, the Supreme Court found that Louisiana’s rule allowing convictions by a majority of 10 to 2 jurors was unconstitutional. Except for Louisiana and Oregon, all states (and, of course, the federal government) require a unanimous jury verdict, though not all states require twelve jurors (Florida requires only six, except in capital cases.)
Now, the Supreme Court faces a subsequent question: Is Ramos retroactive?As Josh Blackman explains in this brief entry in Reason, some Justices in Ramos itself opined on this: “Justice Kavanaugh said it could not be applied retroactively. Justice Alito’s dissent faulted Justice Kavanaugh for reaching an issue that was not briefed. Justice Gorsuch’s plurality leaned towards it not being-retroactive, but it was non-committal.”
Now, the Court has an opportunity to address this directly. Edwards v. Vannoy, recently added to the calendar, is a habeas case with facts very similar to Ramos. The facts, as reviewed in the petition, make a compelling case that this is not merely an effort built on a technicality. Edwards was apprehended on suspicion of several robberies and a rape, even though the description of the perpetrators (“black males with masks”) did not identify him, and at his interrogation (while chained to the wall!) was dissuaded from consulting an attorney. Here’s how the petition describes the rest of the evidence against Edwards:
The perpetrators of these crimes were young black males wearing black caps, gloves and bandannas covering their faces from the nose down to the chin. The police dusted for prints and collected DNA samples from the various crime scene locations and none of that forensic evidence implicated the accused. The police executed a search warrant at the residences of the accused and his codefendant but did not recover any stolen property, weapons or clothing involved in these crimes. In fact, the alleged weapons and bandannas were found in a vehicle driven by three black male acquaintances of the defendant, none of whom testified at trial. The defendant’s photo lineup was presented to five witnesses and only one was able to make a positive identification. This identification is best described as a “crossracial” identification made by a victim that had only a few seconds to view his assailant’s face. Another witness made a tentative cross-racial identification of the accused. Regrettably, the three individuals in possession of the weapons and bandannas were not placed into a photo lineup for viewing, although one of the victims did participate in a show up identification of these three, but that procedure failed to produce identification.
Assuming this is a fair description of the evidence, the case against Edwards was not particularly strong. To complicate matters, the prosecution removed all but one of the African American jurors from the panel during voir dire, and Edwards’ convictions, on all counts, were non-unanimous.
A brief primer on retroactivity: In the diagram below, imagine three defendants: No. 1, whose case begins only after the new rule is in effect; no. 2, whose case was decided before the rule change, but is still “alive” in the sense that it is not final–it is under direct review; and no. 3, whose case is already final, but who, encouraged by the new rule, tries to reopen it via collateral review.
The new rule is always going to apply to defendants 1 and 2, but whether or not it will apply to defendant 3 depends on three questions. The, first question is whether the rule is substantive or procedural. If the new rule is substantive, it will act retroactively; that’s what the Supreme Court decided in Montgomery v. Louisiana, which applied Miller v. Alabama retroactively, leading to reconsiderations of life without parole sentences for many people who have spent decades in prison for crimes committed when they were juveniles under statutory schemes that are now impermissible under Miller (to learn more about these folks, read James Garbarino’s superb Miller’s Children. But I digress.) In our case, however, the rule is procedural; it’s about how the jurors are to decide on a person’s guilt. Under Teague v. Lane, new rules cannot be applied retroactively on habeas, only on direct review, and therefore only defendants 1 and 2 (and not 3) will benefit from the rule change.
The second question is whether this is truly a “new rule” or an application of an old rule. In Davis v. Jones, an appeal of the Orange County federal judge’s decision that the death penalty is unconstitutional because of the delays in its application, respondent’s attorney tried (unsuccessfully)to argue that the new rule was merely an application of Furman v. Georgia.
Even if this is a new procedural rule, it might apply retroactively in the rare case that the third situation applies: if the rule is so fundamental that it can be considered a “watershed rule of criminal procedure.” So far, no habeas petitioner has been successful in arguing retroactivity this way.
How should the lawyers in Edwards approach this? Arguing that this is a substantive rule is a nonstarter, but the other two arguments might have merit, even though each requires a bit of creativity.
One approach could be that the rule in Ramos is not actually a “new rule”, but rather an adaptation of Batson v. Kentucky. The holding in Batson, many readers remember, was that it is unconstitutional to disqualify jurors on the basis of race, and making a prima facie showing of a Batson challenge starts with a pattern of exclusion. Well, in both Louisiana and Oregon, the nonunanimous verdict thing has been intended to function, and indeed functions, as a bypass of Batson. A representative example is Edwards itself: Knowing that you only need 10 jurors to convict, the prosecutor will disqualify all African-American jurors but one or two, thus escaping the need to answer to a Batson challenge but achieving the same outcome: disenfranchising African-American jurors through a combination of a sneaky voir dire tactic and an exploitation of a state rule designed for the very purpose of racist disenfranchisement. As Justice Gorsuch explains in the very beginning of Ramon:
Why do Louisiana and Oregon allow nonunanimous convictions? Though it’s hard to say why these laws persist, their origins are clear. Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to “establish the supremacy of the white race,” and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements. Nor was it only the prospect of African-Americans voting that concerned the delegates. Just a week before the convention, the U. S. Senate passed a resolution calling for an investigation into whether Louisiana was systemically excluding African-Americans from juries. Seeking to avoid unwanted national attention, and aware that this Court would strike down any policy of overt discrimination against African-American jurors as a violation of the Fourteenth Amendment, the delegates sought to undermine African-American participation on juries in another way. With a careful eye on racial demographics, the convention delegates sculpted a “facially race-neutral” rule permitting 10-to-2 verdicts in order “to ensure that African-American juror service would be meaningless.” Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be similarly traced to the rise of the Ku Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.” In fact, no one before us contests any of this; courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.
Ramos v. Louisiana, 590 U. S. __ (2020)
In other words, one approach to the retroactivity question could be that the rule in Ramos, which found this practice to be unconstitutional, can be readily understood as the Court’s effort to undo a tricky loophole in the application of Batson, which dates back to 1986. This reading would date the rule not to 2020, but to 1986, and would apply it to any case that was still in the appellate pipeline when pastels, neons, and shoulder pads were all the rage. Edwards’ appeal was denied only in 2009, so he would benefit from this reading.
Another approach would be to argue that the Ramos holding is a watershed rule of criminal procedure because, in the words of Teague, it “”implicat[es] the fundamental fairness of the criminal proceeding.” An easy probabilistic calculation shows the risk of conviction rises with non-unanimous juries. Think about it this way: with a unanimous 12-person jury, you need one person to insist on acquittal to get to a hung jury. With a non-unanimous 10:2 rule, you need three. With every reduction in the number of people who have to agree to convict, we are decreasing the voice of an unpopular opinion–which, as Henry Fonda reminds us in Twelve Angry Men, is essential for the functioning of the system.
Consider the following analogy between the Ramos holding and the rule announced in in re Winship: Before Winship, the burden of proof in juvenile proceedings was preponderance of the evidence (more than 50%.) The Court found this burden to deprive criminal defendants of their fundamental constitutional safeguard against the possibility that their fate be incorrectly decided due to fact-finding errors–the heightened burden of proof required for a criminal conviction. Ramos “implicat[ed] the fundamental fairness of the criminal proceeding” in a very similar way. Suppose, for example, that beyond reasonable doubt requires 90% certainty in each individual juror’s mind. Introduce non-unanimity and you’ve reduced the aggregate burden of proof to 90% certainty in 10 minds and 0% certainty in 2 minds. Those are significantly different odds, and in the aggregate they result in different odds of conviction–in much the same way that reducing the overall burden of proof does.
So much for the legal arguments. Policy-wise, I can see the Court contemplating the scary prospect of invalidating an entire history of trials in both Louisiana and Oregon–new trials for people whose cases have been final for decades! This prospect might have been what propelled Justices Kavanaugh and (to a lesser extent) Gorsuch to jump the gun and offer dicta in Ramos about it not being retroactive. Some of the concern with the mess retroactivity will wreak upon convictions in these states might be ameliorated by requiring, as for any reversal, a harmless error test. Moreover, there is another important policy argument that cuts the opposite way: because this rule has such an obvious racial animus behind it, applying it retroactively, as in Batson, would have a cleansing effect akin to the destruction of a confederate monument.
The thing everyone was warning you about has happened: the prisons, incubators of COVID-19, are spreading it to the general population. The Columbus Dispatch, reporting on the Ohio prisons rife with infections and disease, reports:
Marion County’s top health official is urging vigilance as the outbreak of the novel coronavirus in a Marion prison spills into the community.
More than 80% of Marion Correctional Institution’s inmates have tested positive for the coronavirus, as have more than 160 corrections officers and other employees, according to the Ohio Department of Rehabilitation and Correction. Those workers live in Marion County and surrounding counties.
More prisoners might have the virus because although a prison spokesperson previously said that mass testing was completed more than a week ago, spokesperson JoEllen Smith said Friday that only 2,300 tests had been administered. She did not clarify whether that included employees, and the prison has about 2,500 inmates.
Even excluding the prisoners who have tested positive, Marion County has a higher number of cases per capita than almost every other county in Ohio, including densely populated ones such as Franklin and Cuyahoga, according to Ohio Department of Health data.
[Health commissioner Traci] Kinsler attributed Marion County’s high number of cases per capita to the prison outbreak.
The idea of prisons as incubators of miasma is as old as the prison reforms of John Howard. Ashley Rubin has a terrific thread on this on Twitter. As she explains, preventing the spread of disease was at the forefront of the reformers’ interests, and for many thinkers was a metaphor for the spread of crime.
Many of the campaigns for releasing prisoners that I’ve seen make the scientifically correct point that, as long as U.S. prisons remain Petri dishes for the virus, nobody’s safe. I want to draw an important distinction between this argument and the equally correct argument that prisoners–better said, people who happen to be in prison during this outbreak–are human beings, too, whose protection from the virus would have to be a priority from a human rights perspective whether or not they endangered others.
I’m wondering whether the former argument is made not only because it is sound (it is) but because of realpolitik. In Cheap on Crime I argued that the post-recession reforms a-la “justice reinvestment”, which led to a decline in the overall U.S. prison population for the first time in 37 years, benefitted from having a morally neutral cost argument, which allowed activists and advocates to break the decades-long impasse between public safety and human rights. It’s quite possible that framing prisoner release as a “what’s in it for me?” argument, rather than an argument on behalf of the prisoners themselves, has more persuasive power, and if so, I’m all for whichever argument gets less people, in and out of prison, sick or dead.
But just so that we get a glimpse of life behind bars, here are some words from Kevin Cooper, an innocent person on San Quentin’s death row (shared with me via email through Innocence Project):
Experiencing COVID-19 on Death Row
By Kevin Cooper
In my humble opinion being on death row with this COVID-19 pandemic raging is like having another death sentence. I can and do only speak for myself in this essay, and I must admit that I am scared of this virus!
I pride myself on not being scared of anything or anyone on death row, not even death itself, because after all this is death row. But this virus is more than just dying, or death. It’s a torturous death, like lethal injection is.
I do all I can to take care of me in here under these traumatic times and stressful circumstances. I social distance, I wash my hands regularly, clean this cage that I am forced to live in on a regular basis, and I often ask myself is this enough?
Every inmate who lives next to me or around me to my knowledge is taking care of themselves too. Quite a few still go outside to the yard every other day as we are allowed to do. I went out for the first time two days ago after a month living non-stop inside this cage. I went out to get fresh air.
This unit, East Block, has staff who have been giving us cleaning supplies such as “cell block” which is a strong liquid cleaning agent, and we use that to spray on a towel and wipe the telephone down before each inmate uses the phone. We have been given hand sanitizer for the first time since this pandemic started. It’s a 6-ounce bottle and the writing on it says World Health Organization Formula. The same World Health Organization that Trump just stopped funding…no joke!
We still have not received any mask* though a memo was sent around last week stating that cloth masks were being made to be passed out to inmates but that they have not yet been finished being made. Who is making them? I don’t know.
We people, we human beings on death row aren’t for the most part cared about by society as a whole. That truth makes some of us wonder, including me, do the powers that be truly give a damn whether we human beings who have been sentenced to death by society care if any of us get the coronavirus and die from it in a tortuous way?
In 2004 I came within 3 hours and 42 minutes of being tortured and murdered/executed by the state of California. I survived that, and have worked very hard with lots of great people to prove that I am innocent, that I was framed by the police and that I am wrongfully convicted. To do all of this and, especially to survive that inhumane and manmade ritual of death in 2004, only to be taken out by COVID-19 is something that honestly goes through my mind on a regular basis. Right now, I am free of this virus and I am doing everything to stay this way. But that thought, that real life and death thought of the coronavirus taking my life is always present, especially under these inhumane manmade prison conditions on Death Row.
*On Monday, April 20th, Kevin called to say: I received a cloth face mask today as did everyone here on death row. We are now instructed to use it every time we leave the cell.
