Yes, We *Have* to Release People Originally Convicted of Violent Crime: The Last Hearing of Susan Atkins

Manson follower Susan Atkins loses 13th attempt at freedom -- and ...
Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband,
James Whitehouse. Photo credit: Ben Margot for the Associated Press.

Latest news on prisoner release: A couple of days ago, the three-judge Plata panel denied relief for procedural reasons (TL;DR “we are not the appropriate forum for this – go to the original courts.”) As good people are scrambling to put together writs for those courts, I wanted to address something that I *thought* would be obvious, but apparently isn’t.

In the aftermath of putting up my petition to release prisoners, I’ve been hearing commentary that we should limit the releases to “nonviolent criminals.” I use the quotation marks because the definitions of what is and is not “violent” and “nonviolent” is not as clear as people think, and because someone’s crime of commitment is not necessarily an indication of their violent tendencies at present, nor does it predict their recidivism.

In Cheap on Crime and elsewhere I described the post-recession efforts to shrink prison population, which targeted only nonviolent people; reformers understandably thought that such reforms would be more palatable to the public. The problem with this kind of policy, though–as this excellent Prison Policy report explains–is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.

In addition to this, if we are looking at releases to address a public health crisis, we have to release the people who are vulnerable to the public health threat. And who, in prison, is most vulnerable? Aging and infirm prisoners.

The math is simple. Out of the prison population, folks who were sentenced for a violent crime are the ones most likely to be (1) aging and (2) infirm. Aging, because the sentences are much longer; and infirm, because spending decades in a hotbed of contagion, with poor food and poor exercise options, does not improve one’s health. We know that a considerable portion of the health crisis in California prison is iatrogenic; not so long ago, Supreme Court Justices were horrified to learn that a person was dying behind bars every six days fo a preventable disease. So, a person who has spent decades in prison is more likely to be vulnerable to health threats. Such a person is also more likely to be older (by virtue of having been in prison for 20, 30, 40 years!) and therefore far less of a public risk of reoffending than a younger person who’s been inside for a few months for some nonviolent offense.

So, if there’s any reluctance to release people who are (1) old, (2) sick, and (3) more likely to contract a serious form of disease that will (4) cause more suffering and (5) cost more money, it’s time to look in the mirror and ask ourselves – why?

Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.

So, is it perhaps because we think of these releases not as an essential public health action, but as some kind of “reward” for people who we think are “worthy” or “deserving”?

The correctional system’s ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book Yesterday’s Monsters I describe the 2009 parole hearing for Susan Atkins, one of the Manson Family members who participated in the murder of Sharon Tate and her friends in 1969. Forty years later, in her early sixties and ravaged by an inoperable brain tumor, Atkins–a devout Christian with a clean disciplinary record for decades–was wheeled into her hearing on a gurney. At her side was her 17-year husband, lawyer James Whitehouse, who represented her in the hope that she be allowed to spend the last few months of her life by his side.

The Parole Commissioners’ treatment of the case was shockingly obtuse. They started by offering the barely conscious Atkins a hearing aid (as if she could hear them), analyzed old psychological reports from her file, and addressed her educational and rehabilitation “prospect.” They even mocked her husband for being able to afford palliative care for his wife. Incensed by this facetiousness, Whitehouse exploded:

For the record, she’s lying in her gurney here. She is paralyzed over 85 percent of her body. She can move her head up and down. She can move it to the side. She used to have partial use of her left arm, partial limited use, meaning she can’t wave to you. She can’t give you a thumbs up. She no longer can point at you, I believe. She can’t snap her fingers. And this is the evidence. . . . We haven’t been able to get her in a wheelchair for well over a year. Permanent speech impairment—“does not communicate, speaking or writing”—complex medical needs, assistance needed eating, bathing, grooming, moving, cleaning, permanent speech and comprehension impairment due to underlying medical problems. . . . That’s the only evidence regarding her medical condition. And all those things have to do with what we are supposed to be looking for the future of behavior. In light of that, is there anything that her commitment offense has to do that’s probative to what she’s going to be doing in the future as far as you know? That’s a question.

The Parole Board refused to release Atkins, arguing that “these Manson killings and the rampage that went on is almost iconic and they have the ability to influence many other people, and she still has that ability as part of that group.” Atkins, who had no ability to do anything at all, died alone in prison a few months later.

If this outcome feels okay to you, ask yourself: what’s it to you? Do you have an idea of deservedness, of a price to pay, of just deserts? Do you think your idea of an appropriate time spent behind bars bows to no one, to nothing, not even to old age, sickness, and death?

Do you feel comfortable sentencing thousands of California prisoners to death because of these ideas of deservedness, or appropriate retribution, that you have? Will these ideas give you comfort when CDCR has to reckon with thousands of preventable deaths of human beings, just like you?

And if your answer is, “well, they didn’t consider that when they killed their victims, right?”, I have news for you: The victims are not coming back. They’ve been gone for decades. It’s horrible, and tragic, and we can’t fix that. Certainly not with another tragedy.

Get in touch with our common humanity. Write to the Governor. Sign my petition. Do something.

Facing Criminal Charges for Saving Animals, Part II: The Necessity Defense

Image result for activists rescuing chicken
Activist rescuing pigs. Photo courtesy DxE.

Part I here

The necessity defense is recognized in common law as a situation in which a person violates the law in order to prevent or mitigate harm. One way to understand the principle behind necessity is to think of a car swerving off the road to avoid an accident and then running into someone’s fence. Ordinarily, the driver would be responsible for the damage to property, but because she caused it in order to avoid a greater harm, we do not hold her responsible. Necessity belongs to a family of affirmative defenses known as “justifications”: rather than merely excusing an individual for a particular set of circumstances that absolve them of responsibility (because they are insane, too young, or intoxicated, for example), a justification applies more universally, and might be regarded as a legal statement that, when faced with these circumstances, the law wants people to choose the lesser harm.

As Jenni James explains in this excellent article, the necessity defense can be elusive, because over the years judges have narrowed its scope. Most states do not even have it codified into their penal code: for example, to find California’s necessity defense, you’d have to recur to the California jury instructions. The elements vary somewhat across jurisdictions, but for the most part they conform to some general principles:

  1. Serious harm (in CA, defendants have to prove that they acted “in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else)”
  2. No adequate legal alternative.
  3. Proportionality between the harm committed and the harm avoided ( in CA, “[t]he defendant’s acts did not create a greater danger than the one avoided). In other words, the opposite of what the Cowboy Fireman did in this terrific Faith Petric song.
  4. A genuine, subjective belief that the act was necessary to prevent the threatened harm or evil.
  5. Objective support for the subjective belief: In other words, that “a reasonable person would also have believed that the act was necessary under the circumstances.
  6. Lack of culpability on the part of the defendant for the emergency in the first place (CA law requires that the defendant “did not substantially contribute to the emergency.”)

As James argues in her article, the ability to even present the necessity defense in court depends on judicial discretion (typically exercised in the context of a motion in limine to prevent the presentation of the defense.) In one decision, U.S. v. Schoon, the Ninth Circuit held that the necessity defense will only be available to activists who engage in “direct civil disobedience”–that is, directly challenging the rules they protest–and not “indirect civil disobedience” activists, who violate a law that is “not, in itself, the object of protest.” As James explains, open rescuers engage in both forms of civil disobedience, because they challenge both the exploitation and cruelty of the animal industry (indirect) AND ag-gag laws (direct.) But the upshot of the decision was that protesters, by definition, were to be denied the necessity defense–even though lower courts sill allow it on occasion. And of course, as James points out, the necessity defense can be a poor fit for these premeditated and planned operations, because by its very nature it is designed to address emergencies.

This means that activists encounter some serious hurdles in presenting the defense. The first and foremost issue that might come up is the big question whether the suffering of animals constitutes “serious harm,” and also, a harm that is proportional to the harm they cause when they enter the facility or remove an animal. Part of this debate is factual: the activists would have to prove the imminent harm to the animals, and to come up with a way to show that this harm is equal or greater to the harm that their actions caused to the farmers. Video evidence showing sick or dying animals might prove their marginal monetary worth to the farmers as well as the harm and suffering to them (but requires, of course, that activists engage with the legal framework that sees animals as property.) As to how harm and suffering are to be measured, one thing I plan to look at is the extent to which potential jurors are open to considering evidence of animal emotions and theories of animal personhood.

I’m reading Frans de Waal’s Mama’s Last Hug, whose point of departure is the animal behaviorist’s skepticism about proof. De Waal argues that we can, and should, be able to assess and measure animal emotions, which human and nonhuman animals can both exhibit and control. The examples he provides show nonhuman animals as imbued with a sophisticated understanding of their social world, as well as a sense of justice, as well as fairness. Larry Carbone’s interesting What Animals Want, which is set at a lab, raises important questions about assessing physical suffering of animals held in labs for experimentation. My hope is to expand my reading on animal emotion, feelings, and suffering, and think about which theory of animal agency would be persuasive to a jury.

Then, there are questions about the subjective and objective intents of the activists, as well as the extent to which they recurred to legal means before taking illegal action (reports to the police, etc.) – this element can be difficult to handle, because often one can know of the specific harms that are occurring only via illegal means. In short, as James argues in her article, “[j]udges seldom have to overtly pit commercial privacy interests against an animal’s right not to suffer. Instead, judges often assume the practice causing the animal’s suffering was legal and thus not harmful for purposes of the necessity defense balancing of harms. Rescuers who wish to remove animals from industrial facilities, then, should be careful to select only animals suffering from clearly illegal activity, which, ideally, should also be documented. However, to avoid the appearance of vigilantism, rescuers might consider using this documentation sparingly and perhaps even sharing it with law enforcement promptly.”

But that raises other questions, which are a proper subject for ethnographic research: How do animal rights activists relate to the law, and to the prospect of criminal justice in their activities? More on that in Part III.

Part III
Part IV
Part V

Patricia Krenwinkel Speaks Up

A few years ago we reported on Patricia Krenwinkel’s parole denial. Today’s New York Times includes an emotional opinion piece by Krenwinkel, looking back on her life and speaking about the Manson family, her crimes, the years in prison, and her self identity.

Will Krenwinkel ever receive parole? I doubt it. Even with our recasting of old and infirm inmates from risky to expensive, the Manson Family murders have a strong symbolic hold over our culture and imagination, and our revulsion of violent crime expresses itself in our fears and vindictiveness. As some readers may recall, another Family member, Susan Atkins, died in prison and was denied parole despite advanced cancer and disability.

But what I find notable here is something that sometimes gets forgotten in anti-prison advocacy: the importance of a message of responsibility. This is what makes me a radical realist. I truly believe that violent crime is real. I don’t think it’s common, nor do I think it justifies the mass incarceration machine and the human rights violations behind bars. But to victims, actual and potential, homicide, assault, and sexual abuse are frightening and damaging and debilitating. And no matter what environmental considerations we take into account, we must not discount the importance of taking personal responsibility. Not as part of a retributivist approach, but as part of a social prevention strategy.

When people who committed violent crime take personal responsibility for their crime, they teach us that redeeming the soul from shame and guilt is possible. They teach us that the victim is no “other” and that our shared humanity means we can have empathy for one another. It means that women are not hoes, cops are not pigs, rival gang members are not animals, people at work one begrudges are not monsters, old people are not dispensable, people of different ethnicities and family structures are not despicable. They teach us that life goes on behind bars, and that even though conditions may be atrocious and require a struggle, there may also be an internal struggle to mature and understand and know yourself better. And perhaps, if victims and potential victims are people, then the inmates serving time for violent crimes are not monsters, either–they are people, like you and me, who did terrible things, and while we expect them to pay a price, and to protect society from the danger they pose, we also should treat them as human beings.

Crime, Incarceration, and the Human Spirit: On Billy Sell and the Escape from Alcatraz

Frank Morris, Clarence Anglin, and John Anglin, courtesy
the BBC UK.

Billy Sell’s tragic death yesterday, ruled a suicide by CDCR, raises some disturbing and urgent questions. How many such casualties will it take for CDCR to take the inmates seriously? We are on Day 21 of the hunger strike and there is serious concern for inmates’ well being, especially those of them who are aging and infirm. Their physical condition is being monitored. Conditions in the SHU debilitate and harm not only people’s mental health, but their physical constitution. It is admirable that, under these circumstances, inmates are committed to deprive themselves of food and drink. And if being prepared for the ultimate sacrifice, because a life of torture and indignity is worse, is not a good reason for CDCR to reconsider its position on isolation, I really don’t know what is.

I wonder how much coverage Sell’s death will receive in the mainstream media. Any effort to honor and remember his honorable sacrifice in the struggle for better incarceration conditions is likely to be blighted by ignorant commentary negating its value because, after all, he was doing time in prison, and therefore he must have been a very bad person, or worse, not a person at all. This is the same pervasive thinking that leads people on the outside to think that inmates are somewhat coddled by what folks who are not in the know perceive as “free health care.” This dehumanizing attitude means not only that people can be disinclined to stand side by side with the hunger strikers and demand better conditions for them, but also that they could completely miss the heroic aspect of the struggle and not find anything admirable in it.

The tragic news of Sell’s passing were particularly poignant for me yesterday, as I received them after completing my sixth successful Alcatraz crossing, which made me think about sacrifice and heroism within walls. Every time I jump off the ferry near Alcatraz and start swimming toward San Francisco I take a few moments to look behind my shoulder. In the first ten minutes of the swim it seems as if The Rock is not getting any smaller. And then, I think about the many documented attempted escapes from Alcatraz, and particularly about Frank Morris, John Anglin, and Clarence Anglin, who in 1961 plotted (with Allen West, who could not join them due to technical difficulties) the most daring, and likely successful, escape through the ventilation ducts, ingeniously using dummies and a raft.

More than fifty years after the escape, the file remains open, and among the thousands of athletes who attempt Alcatraz crossings there are many, like yours truly, who are convinced that Morris and the Anglin brothers made it safely to shore. I like to think of them, now very old men, sitting in a suit and a beret or a fedora at a cafe in North Beach, sipping a strong espresso, reading the Chronicle and chuckling quietly to themselves.

To them, the frustration of looking back and seeing The Rock looming dark and threatening must have been fraught with terrible fear and apprehension, compounded by the serious concerns about their welfare once they got to shore. Would they suffer hypothermia? Who would help and shelter them on the outside? Where would they get money, and how could they avoid being recaptured?

Time has been kind to Morris and the Anglin brothers. Millions around the world admire and respect their courage, ingenuity and bravery. But they were not saints. Morris’ record included daring robberies, and the Anglin brothers robbed a bank (with a toy gun.) They received lengthy sentences and perhaps, to the average citizen in the early 1960s, would appear unsympathetic, dangerous, and undeserving of respect. Just as some people may be thinking about today’s hunger strikers and their struggle.

But crime and criminality do not negate the value of the human spirit, or its ability to soar in courage and conviction. Last week many of us saw Fruitvale Station in the theaters and enjoyed Michael Jordan’s humanizing rendition of Oscar Grant, a man who did not live a grand life of achievement, but rather a life of fatherhood, flawed partnership, and teetering between drug dealing and an honest day’s work. And we cried for him, and we appreciated the ember of humanity within his soul, because it is also in ours, and we wept when that ember was extinguished by a gunshot. Billy Sell’s death teaches us a related, and perhaps more important, lesson. It’s not just that each and every life is precious and imbued with intrinsic value. It’s also that the human spirit does not die if someone has broken the law. Indomitable courage, initiative, creativity, commitment to one’s values, perseverance, and the yearning for personal freedom, are as admirable in prison as they are on a freedom ride or at a protest in the park, and perhaps more so because of the risk of retaliation and mistreatment, not to mention death. There are courage and bravery and principled positions behind walls. There is much there that we can find inspiring and respectable, even as there is plenty there (as on the outside) that we would find petty and deplorable.

May Billy “Guero” Sell’s memory not be in vain, and as generations of athletes are inspired by Frank Morris and the Anglin brothers, may generations of activists and advocates within walls and on the outside honor his sacrifice with an undying struggle for dignity.

———–
Props to Jonathan Simon, whose conversations with me last year inspired this post, to Caitlin Henry, whose work on behalf of the strikers inspires me daily, and to Chad Goerzen and Rhett Aultman for talking to me yesterday about Alcatraz and the power of myth.

Tubal Ligations to Female Inmates in CA Prisons With Questionable Consent

Yes, you read it right. The Sac Bee reports:

At least 148 women received tubal ligations in violation of prison rules during those five years – and there are perhaps 100 more dating back to the late 1990s, according to state documents and interviews.

From 1997 to 2010, the state paid doctors $147,460 to perform the procedure, according to a database of contracted medical services for state prisoners.

The women were signed up for the surgery while they were pregnant and housed at either the California Institution for Women in Corona or Valley State Prison for Women in Chowchilla, which is now a men’s prison.

As you’ll see in the piece, the issue of consent is contested.

Should CA Learn from Mississippi and Rethink Solitary Confinement?

Mississippi State Penitentiary isolation cell.
Credit Josh Anderson for the New York Times.

A recent New York Times story, titled Rethinking Solitary Confinement, tells of Mississippi’s surprising reaction to violent incidents in the solitary confinement unit:

They allowed most inmates out of their cells for hours each day. They built a basketball court and a group dining area. They put rehabilitation programs in place and let prisoners work their way to greater privileges.


In response, the inmates became better behaved. Violence went down. The number of prisoners in isolation dropped to about 300 from more than 1,000. So many inmates were moved into the general population of other prisons that Unit 32 was closed in 2010, saving the state more than $5 million.


The transformation of the Mississippi prison has become a focal point for a growing number of states that are rethinking the use of long-term isolation and re-evaluating how many inmates really require it, how long they should be kept there and how best to move them out. Colorado, Illinois, Maine, Ohio and Washington State have been taking steps to reduce the number of prisoners in long-term isolation; others have plans to do so. On Friday, officials in California announced a plan for policy changes that could result in fewer prisoners being sent to the state’s three super-maximum-security units.

The article goes in depth into the creation of solitary regimes, beginning with the days of Eastern State Penitentiary (an institution we visited and reviewed a while ago) and chronicling the correctional authorities’ constant concern about gang warfare. And, as always these days, there’s a financial angle.

Segregation units can be two to three times as costly to build and, because of their extensive staffing requirements, to operate as conventional prisons are. They are an expense that manyrecession-plagued states can ill afford; Gov. Pat Quinn of Illinois announced plans late last month to close the state’s supermax prison for budgetary reasons.

Realignment: How Not To Do It, the Construction Version

Californians United for a Responsible Budget (CURB) are raising some serious concerns about rehabilitation implementation. They are circulating a petition against the Riverside County plan to charge inmates for their stay, and also spearheading an effort to stop a planned Los Angeles County jail expansion.

Under AB 900, counties have been invited to appeal for Phase II funding to increase their jail capacity. The list of counties is here; Los Angeles tops the large counties’ list.

One of the arguments usually thrown around in support of realignment is that even if the counties do a bad job at imprisonment, they cannot possibly be worse than the state. I’m beginning to think that, in some cases, that may not be true. There is no reason to believe that the state administration has all the punitive foolishness and the counties, all the recidivism-reducing wisdom. It is time for the counties to wake up and seriously commit to the goal of reducing confined population (and the expenses involved in confining it). Otherwise, a precious opportunity will be lost.