A Criminal Enterprise

Deterrence and the Death Penalty

Posted in News by Sophie Cull on January 18, 2011

Outgoing Governor of Pennsylvania, Edward Rendell, wrote a letter to the state General Assembly in his final days as governor, questioning the effectiveness of the death penalty. He wrote,

“As a former District Attorney and as a death penalty supporter, I believe the death penalty can be a deterrent – but only when it is carried out relatively expeditiously.”

Dissatisfied by the delays in actual executions caused by the appeals process, the Governor called on legislators to decide if the process could be sped up or otherwise, called them to consider repeal.

There is no doubt that Rendell is a death penalty supporter: he signed six execution warrants on the same day that he issued this letter – bringing the total number of execution warrants to 119 during his term as governor.

Rendell subscribes to Beccaria’s well-accepted theory that deterrence will only be achieved through punishment that swiftly follow on the heels of the crime. His frustration with capital punishment is rooted in his belief that it can deter future crimes – if only the process didn’t take so long.

Last week, the Illinois legislature voted to repeal the death penalty. Some opponents of the bill spoke about the need for capital punishment to protect prison guards and deter murderers serving life from killing inside the prison walls. Others spoke of general deterrence, claiming that without the death penalty, there would be a higher murder rate in the state of Illinois. That will remain to be seen if the Governor signs the bill.

Regardless of whether the death penalty does deter would-be murderers (and we can probably all agree that pursuing a conclusive answer to this question seems much like chasing the white rabbit), the question we should ask is: what weight should we give deterrence in deciding whether or not we want the death penalty?

It seems to me that deterrence is a secondary reason to have the death penalty which is only compelling in conjunction with a primary reason. If we believe that the death penalty is a just, retributive punishment for the taking of a life, then deterrence would provide a further reason for carrying that punishment out.

But deterrence alone should not be a satisfactory reason for our society to ask for the death penalty. We may deter a child from disobeying us by striking her across the cheek, but just because our technique is effective, it does not make it right. You may disagree, thinking “The death penalty is absolutely necessary if it means we will stop future homicides.” But that is to assume it is the only way to prevent future homicides, as though there are no alternative measures we might take. I believe that way of thinking undersells our potential to create positive change in our communities. In Louisiana, for instance, perhaps the money that is spent potentially preventing homicides by putting people on death row could be funneled into education, healthcare and infrastructure to try and turn around Louisiana’s ranking as the 2nd worse state in the U.S. to raise a child. It is not a coincidence that the vast majority of death row inmates in Louisiana grew up in poverty and dropped out of school. While the link between the death penalty and the homicide rate is inconclusive, there is no question that education and poverty plays a key role in the prevalence of violent crime.

Therefore, I submit that we should not simply ask “is the death penalty deterring crime?” as Governor Rendell urged his legislature to do; we should ask “is the death penalty the most effective way to deter crime?”

The Right Wing Recognizes the Need for De-Criminalization

Posted in Uncategorized by Bidish J. Sarma on November 24, 2009

I was pleased to read this piece, entitled “Right and Left Join Forces on Criminal Justice” by Adam Liptak in the New York Times today. The article documents an important trend in the politics that govern the criminal justice system: many right-wing politicians and activists have taken a position against over-criminalization. Liptak effectively explains the varying conservative interests that have come together under the “anti-criminalization” banner:

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states. . . . Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

This trend stands in sharp contrast to the “tough-on-crime” conservative line that emerged in the 1980s and swept over the country. The realpolitik need for politicians to support tougher criminal sanctions and the death penalty became self-evident in the past two decades. Criminal punishment, for many years, looked like a one-way ratchet (see this post, explaining “just one single seemingly too lenient sentence has prompted an immediate legislative response, but often decades of seemingly too harsh sentences . . . will barely create a political ripple.”): sentences could only become harsher and the scope of behavior considered criminal could only expand. But, times have apparently changed. For now.

Ideologically, it makes sense that individuals skeptical of government power should hesitate to entrust life and liberty to the same State that they believe is incompetent to administer social welfare programs, regulate the economy, and efficiently tax its citizens. If conservatives harbored such doubts about the government, why did they so willingly give the federal and state government greater power in the criminal context? Why did they support more expansive criminal laws and harsher criminal sentences? Why did they profess such unyielding confidence that the government protects the individual’s right to a fair trial, and does not wrongfully convict and execute innocent people? The simple answer: political expediency.

I firmly believe that the current conservative alignment with liberal thinking on criminal justice issues is a temporary marriage of political convenience. But, it represents an important opportunity to correct some of the harm that has been done in the past 30 years. So long as the economy is a shambles, right-wing politicians can point to overcrowded prisons, burgeoning criminal court dockets, and massive government deficits and say – “see, we need to try something different.”

The Times article indicates that some conservatives have declared the shift in viewpoint to be fundamental. For example:

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

Though I wish the shift was truly ideological in nature – as Meese suggests it is – this statement strikes me as nothing more than political posturing. Now is an opportune time to oppose “big government,” and the conservatives know it. Certainly some ideologues will continue to sing the same tune even if the economy rebounds or anti-crime legislation becomes politically expedient again. However, the emerging coalition is realistically a fragile one. I certainly hope that we make progress now.

As far as the death penalty is concerned, I am encouraged by the state legislatures that have sought to cut costs by eliminating capital punishment or limiting the circumstances in which it can be sought. My hope is that we can make enough progress to signal to the Supreme Court that our “standards of decency” have evolved as far as the Eighth Amendment is concerned, and that the perverse institution known as the death penalty will be done away with forever. Though anti-death penalty advocates must first win the battle in the states, those victories are not permanent; instead, they are subject to the will and whims of political opportunism. The fight can only end once-and-for-all in a court of law. Meanwhile, advocates of change in the criminal justice system should seize this moment to push forth the policies that will shrink government budgets, encourage rehabilitation and re-integration, and decrease criminalization.

The Governor of Texas, the Execution of an Innocent Man, and the Incomplete Search for Public Accountability

Posted in News by Bidish J. Sarma on October 2, 2009

It is relatively rare for an American politician seeking office or re-election in a State that has retained the death penalty to make a strong statement against capital punishment.  (Ohio’s Jennifer Brunner is a refreshing exception).  However, one might expect a State’s leader to respond to compelling evidence that his government executed an innocent man with measured concern and a desire to uncover the truth.  Not in Texas.

Nearly one month ago, the New Yorker published David Grann’s riveting and alarming piece that suggests that Texas wrongfully executed Cameron Todd Willingham in 2004.  Despite the compelling expert evidence available in 2004 that indicated Mr. Willingham was convicted on the basis of ‘junk science,’ Texas moved brazenly forward with his execution.  After Grann’s article rocked the nation in September, the Texas Forensic Science Commission prepared to make an official state-sponsored inquiry into Willingham’s conviction and the testimony that led to his death by lethal injection.  Yet, two days before the inquiry was set to begin, Texas Governor Rick Perry sabotaged the effort.  According to this Dallas Morning News article, “The hearing of the Texas Forensic Science Commission, scheduled for Friday in Irving, was abruptly canceled by the new chairman the governor chose, Williamson County District Attorney John Bradley. He is considered one of the most conservative, hard-line prosecutors in Texas.”

Though Perry defends his decision to appoint Bradley and railroad the commission as nothing more than a “typical” use of his appointment power and executive prerogative, nobody is buying his line.  There is no such thing as ‘business as usual’ when the State uses its coercive power to execute an innocent man.

For anti-death penalty activists, Perry’s actions represent a mixed blessing.  On the one hand, Perry has exploded the long-held hope that a State would officially recognize that it had mistakenly executed someone who was actually innocent.  On the other hand, Perry has only drawn more attention to the issue.  I find myself a little surprised he didn’t let the hearings proceed as scheduled and then strong-arm the Commission’s members (behind closed doors) to publish an equivocal report that did not firmly accept responsibility for wrongdoing.  Instead, Perry has made a naked attempt to undermine the Commission’s work.  His move seems to emanate from a deep fear that what most of us think is true: Cameron Todd Willingham was an innocent man.

Maybe anti-death penalty advocates have been unrealistic to hope that a State would acknowledge such a tragic mistake.  Maybe we already have all the evidence we need.  Who really needs Rick Perry’s stamp of disapproval, after all?

But, I wonder if other government officials can take action in Texas.  Can the legislature rebuke Perry?  Or, more importantly, can the legislature create a non-executive commission to undertake the task originally charged to the Texas Forensic Science Commission?  If that is too much to hope for, perhaps the judiciary should step in.  Judges and Justices concerned with the fair operation and administration of the Texas criminal justice system are not powerless people.  Why can’t the judiciary establish its own commission to investigate whether any innocent individuals have been executed in Texas?  The judicial branch is certainly empowered to ensure that it is working effectively, efficiently, and, above all, justly.  The appearance of impropriety and injustice can sap the judiciary of its public legitimacy, and undermine people’s faith in the criminal justice system.  The judiciary has an obligation to protect itself.

As advocates, we need not focus only on the Governor, deplorable as his actions may be.  Let us hold the entire government responsible, until someone steps up.  Inaction here is as contemptible as Perry’s bad action.  Once again, who needs Rick Perry?

A Look Back at What Professor Gates’s Arrest Meant for Our Country

Posted in Uncategorized by Bidish J. Sarma on September 10, 2009

This blog primarily focuses on developments and issues in criminal justice.  Today, however, I wanted to reflect a little on a slightly distinct, but nevertheless inseparable issue: racism and the July 16 arrest of Professor Gates outside of his home in Cambridge, Massachusetts.  I’ve been thinking a little bit about that incident, President Obama’s initial reaction, his apology, and the ultimate “conversation” over a beer at the White House.

In all honesty, little can be said that has not already been pounded home by other spectators and lay observers.  But, with a little more time and distance between us and the arrest (not to mention the popular reaction), I think it is worth asking what we have learned, and what we should have learned.

In my view (one largely informed by a few long conversations with my co-blogger and friend Rob), I really think our nation missed out on a learning opportunity.  It seemed like the media and the public raced to the bottom – painting those with opposing views as extremists, and digging in their heels in a self-righteous proclamation of one view (“racism still alive, they just be concealing it”) or the other (“there they go again, playing the race card”).  Unfortunately, we missed out on a rare chance to engage in an open, honest, and serious discussion about racism, power, and perception in our society – one that could have rivaled the depth reflected in President Obama’s famous Philadelphia campaign-trail speech.

I think that Professor Lani Guinier captured it best in her piece entitled “Race and Reality in a Front-Porch Encounter.” As Guinier put it,

Truth be told, however, the Gates-Crowley encounter did not begin on that porch. Nor will it will end at a White House talkfest, even in an atmosphere leavened by beer. And much more was at play than a conflict about deference or duty.

In fact, the alleged “loud” and “tumultuous” tone of Gates’s voice, and the clanging of the cuffs on his wrists, were the sounds of two different versions of our racial history colliding with our collective amnesia about that history.

In version one, the white cop is the racist. Here, Gates and Crowley were playing out roles assigned to them circa 1963 and little changed since. This version transforms the decorated diversity-training sergeant into a stand-in for the vicious white cops with the police dogs and fire hoses who attacked innocent black children marching for their rights in Birmingham, Ala. The esteemed black professor is an updated stand-in for James Meredith, a black man in Mississippi in 1962 asserting his well-earned place in a citadel of knowledge while a white mob gathers to taunt him.

Contrast version two of race in America: Here it is Gates who is the racist. In response to the officer’s polite request to show identification in his own home, Gates exploded, shouting and yelling that the sergeant was a racist. In this account, Gates, and he alone, racialized the encounter. He escalated a routine procedure into an international publicity stunt when he exclaimed, according to a police report written in all caps, “THIS IS WHAT HAPPENS TO BLACK MEN IN AMERICA.”

In both of those iconic portraits, the solution is simple. In version one, we should “out” the racist cop. In version two, we should simply shut down the use of the “r” word, except as it applies to people of color who apparently have yet to get the memo. Neither of the accounts tells the whole story; each freezes both men in a snapshot of history that is more than 40 years old.

And, Professor Guinier also captured the lessons we should learn when we look back at the infamous arrest:

It is time, in other words, for both versions of the Gates-Crowley encounter to move beyond the 1963 lock on our imagination. Sergeant Crowley is not a virulent Bull Connor. Nor is Professor Gates merely an elegant and more internationally savvy adaptation of a quietly suffering James Meredith. Both of the stock versions of what happened on the Cambridge porch in 2009 are incomplete caricatures.

What might we learn instead about contemporary race matters if we could move beyond the stock stories?

First, history does matter. The undisputed historical backdrop for the porch encounter includes 240 years of chattel slavery, 100 years of Jim Crow, and 400-plus years of intergenerational wealth transfer during most of which time black people not only owned little property—they were property. In roughly 50 of the first 72 years of our country’s first century, the presidents of the United States themselves owned slaves. In the infamous Dred Scott case, in which the U.S. Supreme Court declared that a black man had no rights that a white man need respect, five of the justices were from slaveholding families.

Many self-declared “postracialists” who assume that black poverty is a function of laziness or lack of personal responsibility ignore history’s important legacy in the form of a systemic process still at work. But as William A. “Sandy” Darity, a professor of public policy, African and African-American studies, and economics at Duke University, has reminded us (most recently in an unpublished article written with Darrick Hamilton, an assistant professor at Milano the New School for Management and Urban Policy), black people and Latinos still suffer from crushing gaps in wealth that are intergenerational, not personal, and which, in comparison to the white population, are truly mind-boggling. Darity has pointed out, for example, that, according to 2002 data, the median white household has a net worth of $90,000, Latino households have a net worth of only $8,000, and black households a mere $6,000. Black people with a net worth of $6,000 “would have to save 100 percent of their income for three consecutive years,” Darity says, to close the racial wealth gap, a gap that is the direct result of having been property for some 240 years and having been denied, in so many cases, the opportunity to own property for close to 100 years thereafter.

Neighborhood poverty then cements the historic wealth gap. Continuing racial segregation—which isolates both middle-class and poor black people in high-poverty, high-crime neighborhoods—reinforces the gap. Even now, the children of middle-class black parents who have good jobs but live in poor neighborhoods experience downward economic mobility, through no fault of their own. According to a just-released study by the Pew Charitable Trusts, neighborhood poverty outweighed parents’ education, employment, or marital status in explaining increases in black poverty. The study found that black children born between 1985 and 2000 are 10 times as likely than white children to grow up in neighborhoods with a poverty rate of at least 20 percent. The same study found that half of black children born between 1955 and 1970 in middle-class families (those with incomes of $62,000 or higher in today’s dollars) grew up in high-poverty neighborhoods, while almost no white middle-income children grew up in poor areas.

That finding is important, because it is the physical association between black people and poverty that contributes to cognitive assumptions about black criminality, and which results in the disproportionate attention that black males of all income levels receive from the police. As Glenn C. Loury, a professor of economics and social science at Brown University, recently wrote in a New York Times opinion essay, our policy of mass incarceration is having a range of “negative and self-defeating” effects on communities where large numbers of young black and Hispanic men live.

Second, we need to become racially literate, not postracially blind. Racial literacy is the capacity to conjugate the grammar of race in different contexts and circumstances. Like the verb “to be,” race takes a different form when we speak about “I am” versus “you are” compared with “he is.” In other words, race still matters at a psychic, economic, and sociological level for people of color, even for those who are middle class or multiracial. It may not reveal itself through the spewed invective of a Bull Connor. It is less overt but nonetheless real. It is sometimes a virulent subtext, at other times a nuanced dynamic. But always the meaning of race needs to be interrogated and conjugated carefully in light of relevant local circumstances and their historic underpinnings.

All Americans, not just people of color, need to be better schooled in the subtle yet complex ways that race actually works in the 21st century. Racial literacy requires familiarity with unconscious bias as well as structural racism. It demands a far more nuanced approach than typical charges of racism or race-carding.

To understand what happened on that Cambridge porch, we must free ourselves of the stereotype that racism is always overt—a police officer with a dog and a fire hose. Race and racism are today more like passive smoke. We all inhale the toxic fumes even if we are not the one lighting up the cigarette. And if we take the time to lift the curtain that postracialists insist on pulling over our eyes, we might begin to realize that a porch encounter ostensibly about racial profiling is nevertheless a sign of larger and more systemwide injustices.

Racial literacy would help all of us understand that behind the two force fields competing for respect on that Cambridge porch is a criminal-justice system that exercises outsized control as the major urban-policy instrument for controlling the poor. We have focused our resources disproportionately on policing and criminalizing the poor. As a result, we have too often put our police officers into the positions of legislators, prosecutors, judges, and juries—positions for which they are not qualified and that they should not be expected to fulfill—even in well-to-do neighborhoods like the one in Cambridge.

At the same time, if we read race carefully, we might learn that the conditions of profiling in the criminal-justice system affect blacks and Latinos first and most acutely, but that the same overreliance on the system as our major instrument of urban policy can disempower poor and working-class white people as well. Here I am referring to the fact that the school-to-prison pipeline for young black men affects poor rural white men as well. The lack of a robust economic-stimulus program to combat depression-level unemployment within the black community also affects rising unemployment within many predominantly white counties in the Midwest. Or consider the higher rates of life-threatening conditions like diabetes, high blood pressure, and heart attacks among black and Latino men—which are actually a signal that we need to pay more attention to the health-care crisis that is exacerbated by the anger, hopelessness, and diet in poor urban and rural communities around the country. And while close to one-third of black households have no or a negative net worth, Darity points out that the same is true for 13 percent of white households.

The point of an effort to gain greater racial literacy is not simply to figure out what each man should or could have done differently to de-escalate the porch summit. The point is to explore their encounter as a potent learning moment for the entire country. If we learn to “read race” in context and become more racially literate, we might finally start deliberating about the underlying structural problems and historical challenges raised to consciousness by this porch scene. And rather than assign blame or settle for a photo opportunity, we might just come together to address an American legacy that affects us all.

Thank you, Professor Guinier.  I certainly could not have said it better myself.

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A Thoughtful Reflection on the Release of the Lockerbie Bomber

Posted in News by Bidish J. Sarma on August 28, 2009

I have been thinking quite a bit Scotland’s decision to release Abdelbaset Ali al-Megrahi, better known as the Lockerbie bomber.  Though I think there are many legitimate concerns with his release (and the reception  he received in Libya upon his return), I appreciated Billy Sothern‘s thoughts on the topic:

But I found Secretary MacAskill’s speech remarkable, perhaps because I so rarely see compassion from the people with the political power to exercise it.

Given America’s lust for incarceration and punishment, I cannot imagine this speech ever being made by a politician with an American accent.

You can find Billy’s full post on his blog, Imperfectly Vertical, here.

Many questioned Scotland’s motives, and the decision came under intense fire by the United States government (including President Obama) — a political necessity, if not an understandable expression of outrage given our own nation’s recent struggle to cope with the staggering impact of the 9/11 attack.

Some may remain skeptical and reasonably doubt the sincerity of the compassion, but I hope we all at least think about Secretary MacAskill’s words.