Crack, Torture, and Conspiracy Theories: Why and Which Stories Matter

Conspiracies and evil machinations have been on my mind lately, for a combination of reasons. One of them is that I recently gave a post-play talk at Cutting Ball Theater‘s production of Superheroes, a play by Sean San José performed in collaboration with Campo Santo. The play is a non-narrative, nonlinear take on the 1996 revelations of Gary Webb, then a journalist with the San Jose Mercury News. In a three-part series of articles titled Dark Alliance (later to appear as a book), Webb outlined the emergence of the crack cocaine epidemic in America’s inner cities. According to the story, CIA agents allowed Nicaraguans who financed the Contras to import cocaine into the United States with impunity and protected mid-level drug dealers from the consequences.

That the CIA was aware of drug importing was already known at the time; a 1989 Senate committee admitted as much, but stopped short of tying the CIA to the actual trafficking. Webb’s article provided the missing link. In response, the New York Times, the Washington Post, and the Los Angeles Times refuted and discredited the story, leading the San Jose Mercury News to withdraw it and sack Webb. After a stream of small jobs and financial ruin, Webb committed suicide.

A recent Hollywood movie, Kill the Messenger, reaffirms Webb’s findings. And at the talk I gave, many audience members, especially people of color who came of age during the heyday of the epidemic, expressed their firm belief that Webb was right, and that the CIA deliberately pushed crack cocaine into their neighborhoods with the express goal to destroy them. Michelle Alexander’s The New Jim Crow gives credence to this “strong Webb theory” as well.

Which raises two questions: what do you believe, and, does it even matter what the truth is? When assessing our belief in a story, it’s important to keep in mind the context in which we hear it. There is a lot of talk about white privilege these days, and it’s making a lot of people angry and defensive to the point that I’m not sure the term is useful or productive anymore. What some hear as anger and some as accusation can, however, be understood as an effort to explain to others that one’s lived experience cannot inform a complete view of the subject, and that it is sometimes helpful to open one’s eyes and hearts to the lived experiences of others, particularly if one’s social advantages in life are taken for granted and make them unaware of lives lived without these advantages. The protests erupting in many American cities, by people who are sick of police abuse and of the devaluing of black lives, are an expression of this frustration with not being heard and with having a particular set of experiences ignored and trivialized, even when we are presented with irrefutable evidence.

I think it’s important to take these experiences seriously. Not because I think, at this point, that anyone can productively point the finger at someone at the CIA as some archvillain who decided that dying from crack would be white America’s “final solution” to the black population (if anyone did, I’m sure they’ve found that their cure was much worse than whatever disease they assumed to fix.) I think these experiences matter because, regardless of the personal intent of actors in the system, even if one assumes a modest version of Webb’s theories, which merely ascribes ignorance and neglect, it is frightening that the CIA’s rush to protect the Contras and their allies would lead them to discount the horrific effects drug importing would have on neighborhoods and communities.

In many ways–which I said on Sunday night at the show–ignorance and neglect are worse than intent and malicious design. Because, if someone is evil and malicious, we can point a finger, accuse, (try to) prosecute. But if there is an entire system which, at some point, just decided that the bottom 15% of American citizens are dispensable, there’s not a lot to do and the fight is going to be much longer and harder. And also, because anyone who regards you as an enemy at least ascribes you some importance. On the other hand, if you are discounted, disregarded, and discarded, it’s because, as many of the protesters today are pointing out, the system has come to the collective conclusion that your life doesn’t matter.

Another thought I’ve had on this has to do with the credibility of the theory. This morning, the Senate Committee’s report on the CIA’s use of torture came out. The report tells you what your country does to people, many of whom are probably innocent, without informing you (if you don’t know, please educate yourself). Before 9/11, before the nonexistent weapons of mass destruction, before many other things happened, some of you might’ve thought this impossible, a joke. But those of us who grew up on shows like Mission: Impossible were raised on the premise that we are the good guys, and as such, we are entitled to treat the world as our personal sandbox: torturing, abusing, stealing elections in at least eight countries. Mission: Impossible was a work of fiction, but maybe it was designed to make the inconceivable possible, to ameliorate our feelings and desensitize us for the moment in which we learned the truth.

And what a terrific indoctrination job! In 1974, when we found out that the White House was plotting to steal an election and spied on the opposite party, the president had to resign.  Now, as we find out that a government agency is regularly listening to our telephone conversations and reading our mail, we’re not even apathetic; we’re jaded.

So the question is no more whether the crack cocaine conspiracy is believable or unbelievable. Pretty much everything is in the ballpark of the believable, and Webb’s exposé was not even that far from what the Senate itself admitted back in 1989. The question is, what are we going to do about this?

Death Penalty Representation: Between a Rock and a Hard Place

Today’s ScotusBlog reports on a series of orders denying certiorary to the Supreme Court. The very last one on the list is Redd v. Chappell. The case raises a question that may, at first blush, seem technical: should capital punishment appellants be represented on appeal? Can the appellate courts deny hearing appeals from pro se (unrepresented) appellants?

A little bit of background: As Gerald Uelmen explains in this excellent and informative piece, while California presumably offers representation for capital punishment post-conviction proceedings (See Cal. Govt. Code Ann. §68662), the realities of this arrangement are pretty messy. In 1976, the California legislature created the State Public Defender‘s Office to handle all indigent criminal appeals. In the early 1990s, the governor asked the office to restrict itself to capital cases. Subsequent changes in budget and personnel contributed to the growing backlog of death penalty appointments, as did the special requirements to be counsel in cases of capital punishment: the unique expertise and level of experience required are hard to meet, which means the pool of qualified attorneys is limited. In 2009, when Uelmen wrote his piece, there was a delay of three to five years before a death row inmate had counsel appointed to handle his or her direct appeal. The wait for habeas counsel appointment was eight to ten years after imposition of sentence, and while continuity would be a good thing, it is very rare that attorneys accept representation for both the appellate and habeas process. The latter problem was only partially solved in 1998 with the creation of the Habeas Corpus Resource Center (HCRC), which represents approximately 70 clients in state habeas proceedings. And we haven’t even started talking about federal habeas.

Which brings us back to Redd v. Chappell. Redd was sentenced to death 17 years ago, and his conviction was affirmed on direct appeal more than four years ago. Now, he wanted to pursue habeas remedies, but up until now has not been appointed counsel. But ironically, the California Supreme Court refuses to consider capital inmates’ pro se submissions relating to matters for which they have a continuing right to representation–even if they don’t actually have representation! Presumably, despite having a right to counsel–which is NOT being honored by the state–in order to be taken seriously, and given the grim realities of the state’s failure to meet its obligation, Redd has to waive his right!

The result from the Supreme Court was very unsatisfying, but Justice Sotomayor at least added some explanation as to why she joined the denial of cert: she writes that–

it is not clear that petitioner has been denied all access to the courts. In fact, a number of alternative avenues may remain open to him. He may, for example, seek appointment of counsel for his federal habeas proceedings. See 18 U. S. C. §3599(a)(2). And he may argue that he should not be required to exhaust any claims that he might otherwise bring in state habeas proceedings, as “circumstances exist that render [the state corrective] process ineffective to protect” his rights. 28 U. S. C. §2254(b)(1)(B)(ii). Moreover, petitioner might seek to bring a 42 U. S. C. §1983 suit contending that the State’s failure to provide him with the counsel to which he is entitled violates the Due Process Clause. Our denial of certiorari reflects in no way on the merits of these possible arguments. 

My question is, of course, how is Redd supposed to know about all these options if he doesn’t have counsel to inform him that they exist?

As a coda to this: Some of you may remember that, two weeks before the vote on Prop 34, the Chronicle ran a story about how death penalty inmates themselves opposed the proposition, because it would deny them the free counsel they get. And several opponents of the proposition got behind that; arguably, that was the political capital that helped defeat the proposition. But the truth is that death penalty inmates don’t really get specialized counsel, and many of their petitions lag behind and go unheard for years for that very reason. If the death penalty were to be abolished tomorrow, and all these folks were to do life without parole with the general population, they could be represented by basically any attorney, which would increase the availability and quality of representation, and we would all save money and time.

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Many thanks to Simon Grivet for drawing my attention to this case.

Plata/Coleman Sequel: We Can’t Release Inmates – We Need Their Labor!

If you’ve followed the litigation in Plata/Coleman from the mid-2000s forward, you probably think you’ve seen it all: the dawdling, the evasion maneuvers, the political blackmail. But today I have something really special for you. As you might know, the court has ordered a special parole regime to ensure early releases. What did the Attorney General’s office have to say? The L.A. Times reports:

Most of those prisoners now work as groundskeepers, janitors and in prison kitchens, with wages that range from 8 cents to 37 cents per hour. Lawyers for Attorney General Kamala Harris had argued in court that if forced to release these inmates early, prisons would lose an important labor pool.

Yes, you’ve read it right. The Attorney General’s office now opposes early releases BECAUSE THOSE WILL DEPRIVE IT OF A CHEAP LABOR FORCE. The prisons can only function if prisoners work in them, so… we need to keep them in.

I’m sure I don’t need to explain why this is a shockingly conscienceless rationale to keep people incarcerated and pay them abysmal wages, and much as I resist the unsubtle comparisons made in The New Jim Crow, this really, really reeks of postbellum resistance. Ugh. Shame on you, Ms. Harris.

Prop 47 Passed… What Now?

By now, gentle readers, you’re probably done with celebrating the passage of Prop 47, which will have the effect of reducing charges and misdemeanors for many nonserious, nonviolent offenses. But what does this mean, practically, for inmates and for people with criminal records for felonies that are now misdemeanors?

Californians for Safety and Justice have compiled this neat resource answering your questions. There’s even a form you can use to petition to change your record, from a felony to a misdemeanor. If you’re unclear about how Prop 47 might affect your case, contact the Public Defender’s office in your county.

CCC Endorsements for the November Elections: Yes on 47 and Other Matters

After a bit of a hiatus, CCC is coming back with some election endorsements for Californians. In this endorsement list, I point out only issues that are particular to crime, law enforcement, and corrections; of course, your vote may be influenced by other matters as well.


State Measures

Yes on 47

Prop 47 would reduce sentencing. According to Ballotpedia, which faithfully summarizes the proposition’s text, if it were to pass, it would:

  • Mandate misdemeanors instead of felonies for “non-serious, nonviolent crimes,” unless the defendant has prior convictions for murder, rape, certain sex offenses or certain gun crimes. A list of crimes that would be affected by the penalty reduction are listed below.
  • Permit re-sentencing for anyone currently serving a prison sentence for any of the offenses that the initiative reduces to misdemeanors. About 10,000 inmates would be eligible for resentencing, according to Lenore Anderson of Californians for Safety and Justice.
  • Require a “thorough review” of criminal history and risk assessment of any individuals before re-sentencing to ensure that they do not pose a risk to the public.
  • Create a Safe Neighborhoods and Schools Fund. The fund would receive appropriations based on savings accrued by the state during the fiscal year, as compared to the previous fiscal year, due to the initiative’s implementation. Estimates range from $150 million to $250 million per year.
  • Distribute funds from the Safe Neighborhoods and Schools Fund as follows: 25 percent to the Department of Education, 10 percent to the Victim Compensation and Government Claims Board and 65 percent to the Board of State and Community Correction.

Right now, there is about 60% support for Prop 47. As the Chronicle observes, it seems to be stirring little controversy, and for good reason: it makes sense. You’ll note that this is a classic humonetarian proposal–let’s not throw low-risk people in prison who shouldn’t really be there in the first place, and we’ll save millions doing so. The money is going to a fund that invests in education, victim compensation, and various therapeutic projects. The arguments against it can be easily dispensed with: it won’t “release dangerous people”, because it takes risk into account. It is supported, in grand Cheap on Crime fashion, by people from the left and the right alike, and by victims of crime, who would rather see energy spent on violent offenders. By all means, go ahead and vote YES on 47.

U.S. House

House Representative: Jackie Speier

Speier is one of my favorite politicians. Her work to prevent sexual assault in the military and on university campuses is admirable, as is her sensible approach to databases that would enable tracking down gun ownership. I should say, however, that if you’re a Republican on other maters, you could do far worse than Robin Chew, who would work to reverse climate change and who believes in sensible regulatory reform.

California Supreme Court

Of the three Justices up for retention, I want to mention and support Goodwin Liu, with whom I’ve had a chance to exchange views on criminal justice matters, and who is a sensible and careful interpreter of the CA constitution.

State Executives

Governor: No Endorsement

The race is between incumbent Jerry Brown and libertarian Republican Neel Kashkari. Kashkari has no platform at all on public safety, criminal justice, or corrections, which is truly astonishing given the amount of time the Brown administration spent on these matters, and his focus on “jobs and education” doesn’t seem to include the close connections between these topics and corrections. Obviously, we can’t recommend him. On the other hand, Jerry Brown has maintained that the correctional problem in California has been solved, has fought the Plata order tooth and nail to the point of almost contempt of court, and has practically extorted federal judges into giving him two more years for depopulation under threat of heavy privatizing. Between a bad track record on corrections and no interest in the topic at all, I think it’s a toss-up.

Lieutenant Governor: Gavin Newsom 

Yes, I know. Newsom is responsible for sit/lie in San Francisco. But do we really want Ron Nehring in the lieutenant governor’s chair? He wants to repeal Realignment and build more prisons. It’s a very antiquated and uninformed conservative position, one that most reasonable conservatives have already rejected. This one is a no-brainer.

California Attorney General: Kamala Harris, with Reservations

Having recently heard, with a heavy heart, about Harris’ intent to appeal Jones v. Chappell for reasons that don’t make any sense to me, and watched, with concern, her battle against truancy stigmatize kids and parents along the way, this one is not a no-brainer for me. The correlation between truancy and crime does not necessarily imply causation, and the cause of both–poverty and social neglect–is the one that should be addressed. This campaign is failing to excite voters, but I think it’s for the opposite reasons to those the Gold campaign assumes. We’re disappointed because we want Harris to be smarter on crime, not because we want Gold to be tough on crime. Gold supports legalization of recreational marijuana, but he is inexperienced and does not have thought-out policies on all the issues we are addressing. For what it’s worth, he urged Harris to appeal Jones v. Chappell, so death penalty issues are a toss-up. There doesn’t seem to be much of a platform for rehabilitation, though Harris can cite her collaboration with the Public Defender’s office on Operation Clean Slate.

California Secretary of State: No Endorsement

With Leland Yee, who despite his alleged involvement in corrupted dealings was a big champion for juvenile delinquents in the State Assembly, out of the race, we’re left with a choice between Alex Padilla and Pete Peterson. No one has asked them the important question–do they interpret the CA constitution as Debra Bowen did, to exclude Realigned felons doing time in jails as ineligible to vote? While both candidates speak about the need to improve civics education, Padilla seems to be more interested in actually reaching out to people to expand the vote, but Peterson has some good suggestions for increasing the vote via early voting and other options of convenience.

State Legislature: Notable Issues

Tom Ammiano is not running for reelection, and we thank him for his consistently incredible, sensible, and humane service to folks without voices and voting rights, including the thousands of people on solitary confinement. Neither in Nancy Skinner, who was an important voice for eliminating long-term solitary confinement. In District 17 (San Francisco) you’ll have to pick between David Chiu and David Campos. People I respect support each of these candidates for good reasons. I’m leaning toward an endorsement of Campos, because of his important anti-gang work, but am open to hearing more.

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If all you remember from this post is to vote YES on 47, I’ve done my job.

All Counties Committed to Enrolling Inmates in Health Care!

A new report by Californians for Safety and Justice and the Local Safety Solutions Project announces good news: pretty much all California counties are committed to enrolling their criminal justice populations in health care, and 70% of counties are actively doing so.

Where does the funding for this welcome activity come from?

This is excellent news. As we know, many formerly incarcerated people don’t necessarily have the resources or know-how to deal with the intricacies of Obamacare and are walking out of jail systems whose health care services are sometimes truly deficient. This guarantees that, as people return to life on the outside, they’ll be covered and protected.

Today at Noon, PST: Interview about Cheap on Crime on KPFA

Today at noon, PST, KPFA will air an hour-long interview I did with C.S. Soong from Against the Grain about my forthcoming book, Cheap on Crime. It was a great conversation. Here are some details on how to listen:

To Listen Live:
KPFA 94.1 FM in the Bay Area and beyond
KFCF 88.1 FM in Fresno and the Central Valley
Online, worldwide: http://www.kpfa.org.
To access the recording afterward:
http://www.againstthegrain.org/