2010 was an odd year for the death penalty in California. Remember our discussion of California’s killer counties? And the interactive map comparing death row inmates per county? As you may recall, 40 people on death row come from Alameda; district Attorneys have spent $16.5 million pursuing death penalty trials since 2000; and, since 2000, Alameda has sentenced 15 people to death. Which is why this evening’s event might be of interest to many.
What? Forum on the Death penalty
Who?
Aqeela Sherrills, California Crime Victims for Alternatives to the Death Penalty
Delane Sims, Board of Directors, Death Penalty Focus
Darryl Stallworth, Former Alameda County Prosecutor
Moderator, Natasha Minsker, ACLU of Northern California
Where? Berkeley City College Auditorium,2050 Center Street,Berkeley, CA 94704
When? Tonight, Tue, April 12, 6:00-8:00
Admission is free. Contact: Ana Zamora: azamora@aclunc.org or (415) 293-6321.
This week, the Supreme Court decided Connick v. Thompson. The decision received some justifiably scathing critique, and this morning, an eloquent, moving response from John Thompson himself, the man who spent eighteen years in prison, most of them on death row, for a crime he did not commit, because of prosecutorial misconduct. For an excellent summary of this distressing affair, and of Thompson’s dramatic last-minute acquittal, I recommend the excellent NPR coverage. It’s difficult to provide a short version, but the facts are, in essence, as follow:
Thompson got arrested for murder and subsequently charged with an unrelated burglary. The prosecution decided to proceed with the burglary trial first, because a conviction would rule out Thompson’s testimony in the murder trial and would allow them to seek the death penalty. They did not reveal to the defense several important pieces of exculpatory evidence, including a blood sample taken from the crime scene. Thompson was convicted of burglary, did not testify in his murder trial because of the conviction, got convicted of the murder, too, and sentenced to death.
A month before his execution, a private investigator managed to unearth the blood sample hidden almost twenty years before. The blood type did not match Thompson’s. Thompson was retried and acquitted of all charges.
Unbeknownst to Thompson at the time, several years before the discovery – when he had already been in death row for years – one of the prosecutors, diagnosed with a terminal illness, revealed to another prosecutor that he had withheld the exculpatory evidence. Now aware of the misdeed, no one else in the prosecutor’s office had done anything to bring this information to light. After his exoneration, Thompson sued the prosecutor’s office for damages under Section 1983. He was awarded 14 million dollars in damages by a jury. The decision was appealed to the Supreme Court.
Justice Thomas’s opinion was that the prosecution’s failure to disclose the exculpatory evidence did not constitute a general flaw on the municipal/organizational level. The opinion states that this was a personal, intentional misdeed, and that there was no duty to train attorneys in discovery rules beyond what they learned in school. Justice Scalia’s opinion is even more alarming: He says no discovery violation was committed, at all. Justice Ginsburg’s dissent points out a pattern of prosecutorial misconduct at the office, arguing that better training might have prevented this tragedy.
Here are my two cents about this: The opinion and concurrence are wrong, empirically and morally. But the dissent also misses the point. Whether a given discovery error, or any other prosecutorial error, stems from negligence, lack of training, or intentional deed, it occurs within the fertile Petri dish of prosecutorial organizational culture.
Classic social science courtroom research in the 1960s and 1970s focused on “the courtroom workgroup”: Judges, prosecutors, and defense attorneys. In ethnographical studies of these groups, scholars have consistently found a strong adherence to the organizational culture of the office. One “goes native” upon starting to work there, and it impacts not only one’s value system, but also how one reads criminal cases.
It’s as if prosecutors are trained to see the faces and defense attorneys the vase, or vice versa. Prosecutors are trained to look at convicting evidence and at the “convictability” of the case. Defense attorneys are trained to find flaws in the police files. After a while – and it really doesn’t take much – it becomes a second nature. Very little crossover and cross-pollination occurs, and as a result, ironically, the people in charge of spotting exculpatory evidence are prosecutors, who would naturally be less inclined to notice its exculpatory nature.
I sometimes run a little experiment when I teach our criminal law concentrators. Following this interesting experiment, I show them this video of a police chase and ask them several questions: Whether they think the driving was dangerous to the driver, the police, the public, and whether ending the chase in a way that endangered the driver was justified on the part of the police. Without fail, every year the classroom splits along several demographic lines, the notable being people who have interned in prosecutorial offices and in defense offices. Not only is there a split on whether the behavior was justified. There is a split about the facts; they have been socialized to perceive the facts in different ways.
This is what I think is at the bottom of this. One man’s willful act of deceit gets support by others, who are too lazy/obtuse/corrupt to report, but all of this cannot happen without a culture that has educated them to dehumanize and disbelieve defendants, even in the face of evidence to the contrary. This cognitive failure is not an aberration; it is the natural outcome of a hyper-adversarial system, in which prosecutors basically run the show.
The bottom line is: Justice Thomas is wrong. Justice Scalia is even more wrong. Thompson should have prevailed. However, I am much less optimistic than Justice Ginsburg, and truly believe that no amount of training could have helped here. What is needed is more socialization, starting in law school and continuing, into the thinking patterns of the other side. Prosecutorial offices should hire more people with defense experience and vice versa, and those people – trained into the ways of thinking of the other side – should run training programs. Law school should emphasize the importance of arguing both ways, not as an empty exercise in fancy rhetoric, but as a tool for improving perception. The bar exam should place more weight on the performance exam, asking future practitioners for persuasive memos in both directions. And, of course, toning down our farcical, game-show-like enthusiasm for hyperadversarialism would help, but that may not happen in my lifetime.
Lori Silverbush and Michael Skolnik’s 2004 movie On the Outs is a heartbreaking, empathetic peek into the world of three girls caught in the juvenile justice system. The script grew from the directors’ experience bringing a workshop into a juvenile detention center in Secaucus, NJ. Their familiarity with, and empathy toward, the girls is palpable and moving, and their experiences getting to know the inmates have made the film credible.
Suzette, a 15-year-old living with a stern, involved mother, meets a guy in the street. Her infatuation with him leads to an unplanned pregnancy and running away from home. As she meets his friends and gets introduced to his world, she learns unpleasant realities about their relationship; she eventually gets arrested when he drops a murder weapon into her bag. Her world begins to spiral out of control, and her well-intentioned mother is powerless to keep her away from the streets.
Marisol is first shown as a dedicated single mother, playing with her daughter in the yard. We later learn that she relies on her grandma in raising her child, as she is hopelessly addicted to crack; her arrest after a car accident leads to losing her child to the foster care system. Marisol’s raw desperation at losing her child is matched in intensity by her continuing need for the drug; she is unable to face and overcome her addiction.
Oz, the daughter of an addict, is the family’s breadwinner; a tough drug dealer, she holds her own in the streets, and has a soft spot for her brother, Chuey, who suffers from mental disabilities and from asthma. Her frustration with her mother’s addiction and her protectiveness of her brother are moving and complement her street wisdom and straight talking, which make her the unofficial leader of the juvenile facility.
Each girl sees the lives of other girls through the prism of her own experiences; Oz, for example, is exasperated with Marisol, because she sees her own helpless mother in her. Suzette, a newcomer to the juvenile justice system, is apprehensive and afraid of the more hardened inmates, but gradually loses her innocence as her romantic dreams fall apart. The girls’ relationships – with their families, with men, with the streets – are woven together to present a tapestry of dysfunction, exploitation, and miscommunication.
All three girls are movingly and convincingly portrayed. The clever script does not shirk away from presenting personal responsibility when appropriate, but places it within the context of environment and circumstances. Suzette’s story was particularly touching to me, because it echoed what I learned this year from the GEMS foundation and from their excellent documentary Very Young Girls. Shying away from generalizations and heavy-handed social critique, the movie focuses on the personal, intimate details of the girls’ lives, leaving it to us to connect the dots.
On the Outs is available for live streaming from Netflix, and might be part of our criminal justice film club next fall.
This morning’s New York Times features an article explaining the differences between the different chemicals used for executions.
Opponents of the death penalty object to either drug. Some say thiopental can wear off too quickly, allowing inmates to feel pain. Others object to using pentobarbital, because it is so infrequently used in humans.
In the three-step cocktail common in executions, a barbiturate is given with pancuronium bromide, a paralyzing drug, and potassium chloride, which induces cardiac arrest. Dr. Segal said all three drugs can have lethal effects.
“I’m not sure anyone knows which drug actually kills someone,” he said.
In fact, one can do the job. Ohio has used both barbiturates by themselves in executions.
This discussion comes in the heels of several stays of execution, for reasons unrelated to the technology.
Golden Gate University School of Law’s student organization Dignity In Schools and a supporting coalition of community organizations, as well as the following student organizations at Golden Gate University: Queer Law Student Association (QLSA), Black Law Students Association (BLSA), La Raza, ACLU, National Lawyers Guild (NLG), Students for Sensible Drug Policy (SSDP), and the American Constitution Society (ACS) invites you to join us at two community conversations about strategies that the State can take to reduce truancy and support students in finishing high school. Assemblywoman Fiona Ma will be the speaker on Friday, April 8, 2011 from 3:00 – 5:00 p.m. Senator Mark Leno will be the speaker on Saturday, April 16, 2011 from 9:00 a.m. – 12:00 p.m.
California faces a crisis in students not finishing high school. The San Francisco Chronicle recently reported that 37% of African American students are not finishing in the state and 22 % of all California students are unable to complete school. A large portion of students who do not finish high school end up incarcerated. According to the Harvard Civil Rights Project, 60% of African American males who do not finish high school will end up in prison at some point in their lives. The California Dropout Research Project found that a 50 percent reduction in dropouts statewide could save $12 billion and prevent nearly 15,000 criminal acts.
We believe that an important way for us to address this crisis is to develop well-designed strategies to address education deficits and that truancy is a significant point where this issue can be addressed. Students at our University are eager to hear from you about your ideas, as we have been actively holding events to critically examine different strategies to combat the school-to-prison pipeline, and we have found that many of the students in our program made the decision to come to law school so that they could better serve the children in our community.
We hope you will join us for a dynamic discussion that we hope will be the first of many, as we work together to build solutions to this significant civil and human rights issue that plagues our state and our nation.
Our first event will be a community conversation with Assemblywoman Fiona Ma on Friday, April 8, 2011 from 3pm – 5pm at GGU in room 3214.
We will also be having a community conversation with Senator Mark Leno on Saturday from March 16, 2011 from 9am – 12pm. This will also be held at GGU in room 3201.
This week, Madrid v. Gomez, a massive class-action lawsuit on behalf of Pelican Bay inmates filed in 1995, came to an end. KQED reports:
In a sweeping decision with national implications, U.S. District Court Judge Thelton Henderson of San Francisco ruled in 1995 that Pelican Bay inmates had been subjected to excessive violence and cruel and unusual punishment. That followed harrowing courtroom testimony of prison staff routinely beating, burning and even shooting inmates and getting away with it. Mentally ill inmates were locked away in isolation units with almost no contact with doctors or other staff.
The trial also included evidence that Pelican Bay guards had staged an inmate riot while Henderson was visiting the facility.
Federal prosecutors alleged the guards were trying “to show Judge Henderson that Pelican Bay is a dangerous place, and that he should not interfere with the guards in running the prison.” Henderson ordered the prison to remove any seriously mentally ill or retarded inmates from the security housing unit. He also appointed a federal monitor to oversee changes in the way California deploys force in prison and how it investigates and disciplines prison staff.
Henderson ended the case with a final three-page written order after the California Department of Corrections and Rehabilitation pledged to keep the reforms even without court supervision. His order was made public Monday.
“The Court is proud of the work done during Advertisement the life of this case. Pelican Bay was once a place where prison officials used force ‘for the very purpose of inflicting punishment and pain,'” Henderson wrote, quoting from previous findings in the case.
The judge said he is concerned the department could revert to its previous unconstitutional practices but said he is satisfied that attorneys representing inmates will sue again if the department regresses.
“CDCR has complied with the Madrid mandates and successfully created a model internal affairs investigation and employee disciplinary process. Investigations are consistent, thorough, fair and transparent. The Madrid mandates also provided oversight of employee investigations by the formation of the Bureau of Independent Review in 2004, part of the Office of the Inspector General (OIG). In its last report, the OIG noted that CDCR has substantially complied with the policies and procedures mandated by the Madrid court,” Cate said.
As Michael Montgomery says in the recorded portion, the broad issue of SHU and isolation practices remains unanswered.
Joshua Page‘s recent post on the California Progress Report about the CCPOA raises interesting and important questions about the extent to which the union that shaped so much of California’s punitive landscape has morphed into a more realistic factor in policymaking. In recent years, the CCPOA has periodically spoken out against overcrowding (in our conference, too) and issued its fairly sensible blueprints for reform. “Despite these signs of a softened stance,” writes Page, “the CCPOA’s actions question the extent of its transformation.” He cites sad examples such as the CCPOA’s objection to the now-forgotten Prop 5 and its support of Prop 9, the punitive proposal masquerading as a victim rights proposition, which voters in CA approved under the name Marsy’s Law.
There are other important aspects in Page’s post, but the one I found most intriguing has to do with the CCPOA’s deliberately political use of victim rights.
In the early 1990s, the union effectively created Crime Victims United of California (CVUC), the most influential crime victims’ organization in California, if not the entire United States. (The union also helped establish another influential group, the Doris Tate Crime Victims Bureau, but now works primarily with CVUC). The CCPOA committed extensive resources to the development of the CVUC, providing office space, lobbying staff, attorneys, and seed money. Harriet Salarno, president of CVUC, says forthrightly, “I could not do this without CCPOA, because we didn’t have the money to do it.” Beyond material resources, the CCPOA also taught CVUC how to play the political game.
The union developed CVUC for strategic purposes. This is not to say that CCPOA’s leaders do not genuinely care for and want to assist victims and their families; they do. But, CVUC helps the CCPOA achieve its goals from outside its ranks in three main ways. First, it validates the CCPOA’s public claims that prison officers are uniquely skilled professionals who work the “toughest beat in the state.” Second, it legitimates the CCPOA’s assertions that the union serves universal purposes (rather than its individual, pecuniary interests) by supporting crime victims and bolstering public safety. Just as families of schoolchildren promote teachers and the California Teachers Association, crime victims’ advocates endorse prison officers and the CCPOA. Third, CVUC helps the union achieve policy objectives, often providing a sympathetic face to campaigns that advance a “tough on crime” agenda.
In Governing Through Crime, Jonathan Simon writes about the transformation in our cultural conception of the quintessential citizen – from yeoman farmer to small business owner to victim. Our whole concept of public policy is constructed around our understanding of ourselves as potential victims. Our fetish of homeownership, the emergence of gated communities – all reflect our understanding of the home primarily as a fortress against crime (plenty of crime, of course, happens in upscale well-protected mansions, too; it’s just not the crime you would expect.) The fact that a prison guard union finds it useful to create a pet organization of victim advocacy attests to the immense symbolic power of the victim in social discourse. CCPOA, a well-seasoned player in the California political game, understands the power of the victim all too well.
Drug courts, heavily promoted as a novel way to holistically resolve issues concerning addiction, have generated a fair amount of data on their clients (findings on recidivism rates are still sorely lacking despite the acknowledged need to examine this angle). They have also generated a substantial amount of critique from defense attorneys. But yesterday’s This American Life broadcast shed light on something quite different: A drug court in Georgia that seems to operate under very different basic premises than the general problem-solving paradigm. Here’s the abstract of Part One:
Ira reports from Glynn County Georgia on Superior Court Judge Amanda Williams and how she runs the drug courts in Glynn, Camden and Wayne counties. We hear the story of Lindsey Dills, who forges two checks on her parents’ checking account when she’s 17, one for $40 and one for $60, and ends up in drug court for five and a half years, including 14 months behind bars, and then she serves another five years after that—six months of it in Arrendale State Prison, the other four and a half on probation. The average drug court program in the U.S. lasts 15 months. But one main way that Judge Williams’ drug court is different from most is how punitive it is. Such long jail sentences are contrary to the philosophy of drug court, as well as the guidelines of the National Association of Drug Court Professionals. For violating drug court rules, Lindsey not only does jail terms of 51 days, 90 days and 104 days, Judge Williams sends her on what she calls an “indefinite sentence,” where she did not specify when Lindsey would get out.
The full broadcast will be available here on Sunday.
Americans are in more debt than ever before, and the banks are going to new extremes to squeeze us for every last penny: If you can’t pay up, they’ll try to get you locked up.
The Wall Street Journal has been investigating the disturbing resurgence of debtors’ prisons throughout America — here’s one especially infuriating example of what the banks are up to: AIG got a $122.8 billion bailout from taxpayers — that’s $4,000 per American. Jeffrey Stearns happened to owe AIG $4,000 on a loan for his pickup truck. How’d the mega-corporation handle his debt? Did they forgive him because of the public’s recent largess? No way: They had him arrested in front of his family.
After being handcuffed in front of his four children, Mr. Stearns, 29 years old, spent two nights in jail, where he said he was strip-searched and sprayed for lice. “I didn’t even know I was being sued….It’s the scariest thing that ever happened to me.”
The Wall Street Journal’s data reveals that across the country, banks are having tens of thousands of Americans arrested over their debts. What happened to Stearns could happen to almost anybody.
