A Forest of Poisonous Trees: The US Criminal (In)Justice System
Thursday, 04 April 2013 07:31
By Kevin Zeese. This article was first published on truthout.
There is a doctrine in the law developed in 1939 by Justice Felix Frankfurter known as the Fruit of the Poisonous Tree. The thrust is that courts do not allow illegally obtained evidence to be used in a criminal prosecution. This fruit of the poisonous tree cannot be allowed in court because it pollutes the justice system and encourages illegal behavior by police.
After decades of escalation beginning with Nixon's war on drugs, followed by the Reagan-era crack scare, Clinton's massive expansion of police on the street and this century's war on terror, the US criminal justice system has transformed into a tool of the national security state that pits citizens against government in everyday encounters.
As is the case for all of the crises that we face, there are more humane and effective ways to create real security. These solutions are being ignored because the security state is a powerful tool for government control and is a profit-producing Wall Street industry. Without intervention, we can expect the security state to encroach further into our lives and society. However, grassroots groups and inmates are taking action to increase awareness and detoxify the poisoned system.
Police-Citizen Encounters: A Security State Run Amok
Police-citizen encounters primarily involving people of color are increasing in number and severity. There are many examples of police killing citizens, over 400 each year nationwide. Few of these cases are ever independently investigated. To illustrate the injustice, we will describe two recent cases involving teenagers Kimani Gray and Alan Blueford.
On March 9, 16-year-old Kimani "Kiki" Gray was shot in the back and killed by two undercover police. Kiki had just left a baby shower and was not far from his home in Brooklyn's East Flatbush neighborhood when an unmarked car approached him and his friends. Police claim that Kiki pointed a .38 caliber revolver at them, but eyewitnesses report that Gray was not armed at all. The police fired 11 shots in total, three of which hit the teenager in the back.
Since the killing, there have been ongoing protests in Brooklyn to demand an independent investigation. Even without an investigation, Mayor Bloomberg has already stated that the killing was justified.
Last May, high school senior Alan Blueford had just attended a sporting event in Oakland. He called his parents to say he would be home soon and was waiting outside with two friends for a ride. An unmarked car pulled up with its lights off. Alan ran, possibly thinking it was a gang. Oakland Police Officer Miguel Masso chased the 18-year- old, shooting Alan twice in the back and side, killing him; as well as shooting himself in the foot.
Police claimed Alan had a weapon, but over a dozen witnesses said he didn't. The family and community have been protesting, calling for Masso to be fired and prosecuted, an end to stop-and-frisk and racial profiling and an independent investigation into Alan's case and other police killings.
These cases stem from racially prejudiced police policies which used to be known as racial profiling but are now commonly referred to by the more neutral term stop and frisk by police to avoid being identified as racist. Racial profiling has become especially notorious in New York City, where 5 million people have been subjected to abusive searches over the last decade, mostly young African-Americans and Latinos.
Police justify stop and frisk by saying that it is used in high crime areas. Downing points out that the number of people being stopped is much higher than local crime rates would justify and that stop and frisk also occurs in low-crime, mostly white areas when people of color are there.
The stop-and-frisk program has been targeted by thousands of protesters from Occupy and other community groups. Twenty were arrested in civil resistance protests and in a circus of a trial, were found not guilty of the most serious charges.
In addition, a class action was filed against the NYPD over stop and frisk. This trial, Floyd, et al. v. City of New York, et al. has so far featured revelations by police whistleblowers who oppose the practice and have testified that they were directed to use the searches aggressively and to target young black men aged 14 to 21:
Officer Adhyl Polanco testified that supervisors pressured officers with quotas for "stop-and-frisk" searches and arrests. Polanco secretly recorded this on audiotape. On the tape, senior officers order officers to generate arrest quotas of "20 and 1" which means 20 summonses and one arrest each month. Polanco also testified that in 2009, he was asked more than 20 times to fill out a stop-and-frisk form attesting to an incident he did not observe.
Officer Pedro Serrano taped conversations he had with his commanding officer, Deputy Inspector Christopher McCormack, who said: "I told you at roll call, and I have no problem [to] tell you this, [you should stop and frisk] male blacks 14 to 21." Serrano taped McCormick because he had gotten poor performance reviews for failing to meet what he claimed was the monthly quota of 20 summonses and five stop-and-frisks.
And, of course, there are now revelations that the Department of Homeland Security and the FBI worked with police to infiltrate, spy upon and set up protesters involved in the Occupy movement. These COINTELPRO-like programs have been the norm against political movements for the last 100 years.
Mass Incarceration: Extreme, Expensive and Exploitative
The poison fruit of the massive security state apparatus in the United States is mass incarceration. The United States, with 5 percent of the world's population, has 25 percent of the world's prisoners, meaning one out of four incarcerated people are in the "land of the free." According to the World Prison Population list, the United States has the highest prison population rate in the world, 743 per 100,000 of the national population. The next closest is Rwanda at 595. More than half the countries and territories in the world (54 percent) have rates below 150.
Incarceration is only part of the criminal justice supervision system. When probation and parole are included, 7.3 million Americans are "in the system"; that is, 1 out of 34 Americans is either incarcerated, on probation or on parole. The rate of African-Americans under supervision (prison, probation or parole) is 1 in 11.
This massive increase in incarceration has occurred because of extreme sentencing schemes, especially mandatory sentencing for drug cases. For example, in the federal prison system in 1980, there were 4,900 federal prisoners held for a drug conviction, but by 2009, that number had ballooned to 95,205.
Downing relates this increase to the private for-profit prison industry. The American Legislative Executive Council (ALEC) introduced the concepts of zero tolerance and "three strikes you're out" decades ago through willing politicians. ALEC predicted that as the number of prisoners increased, the public prisons would become overwhelmed and this would open the door to private, for-profit prisons.
Corrections Corporation of America (CCA), the largest prison corporation and a member of ALEC, has negotiated contracts with states that guarantee 90 percent occupancy rates for the length of the contract, some of which are 20 to 30 years. ALEC has been behind laws that allow prison labor at private prisons, paying inmates as little as 17 cents per hour. The demand for prison labor by corporations such as IBM, AT&T and 3M creates a greater incentive to incarcerate. CCA is also known for human rights violations, cutting services to save money and increase profits. On March 27, hundreds of inmates at the Cibola County Correctional Center in New Mexico staged a 12-hour protest over prison conditions. Last year, prisoners in Mississippi violently rioted over lack of health care and abusive conditions, as did inmates at another CCA prison in Texas in 2010. A September 2012 report found private prisons to be unsafe, unnecessary and expensive.
Indeed, the mass incarceration system is very expensive. According to the federal Bureau of Justice Statistics, in 2010, state corrections institutions spent $37.3 billion to imprison a total of 1,316,858 inmates. BJS estimates that the mean expenditures per person were $28,323. The federal government fiscal year 2013 budget for the Bureau of Prisons totals $6.9 billion. Imagine the result if those dollars were invested in communities instead.
When incarceration is looked at through a racial prism, the racially disproportionate impact is striking. According to the Bureau of Justice Statistics, "In 2011, blacks and Hispanics were imprisoned at higher rates than whites in all age groups for both male and female inmates. Among prisoners ages 18 to 19, black males were imprisoned at more than 9 times the rate of white males."
The Stop Mass Incarceration Network, which is building a movement to end mass incarceration and police brutality, describes the circular, spiraling nature of this injustice - how it destroys families and communities and creates more crime and incarceration: "This racially targeted mass incarceration results from whole generations of inner city youth being criminalized; of poor communities being saddled with substandard schools that fail to educate our youth; and from the disappearance of employment opportunities in inner cities and rural areas.... On top of all this, after people serve their sentences, our society stamps them with a badge of dishonor and shame, discriminating against them when they seek employment, denying them access to public housing and government loans and even the right to vote!"
As public programs are defunded and privatized, the social and economic destruction of communities tears them apart and fuels the private prison industry. The school-to-prison pipeline is growing as students no longer drop out but are forced out. Since the 1970s, the number of students who are suspended has doubled. Not surprisingly, the majority are black. And police are now called to schools to handle routine behavioral issues in which they have little or no training. There are stories of children as young as 5, 6, 7 and 8 years old being handcuffed by police for normal childhood behavior.
The disenfranchisement of prisoners is regarded by many to be a new way to deny blacks the right to vote after passage of the 1965 Voting Rights Act. Currently, 13 percent of black men have lost the right to vote because they have been convicted as felons. Without the vote, people lose the right to have a voice in the policies that affect them.
Solitary Confinement: Widespread, Abusive and Counterproductive
According to Jean Casella of Solitary Watch, on any single day, the United States holds 80,000 to 100,000 people in solitary confinement. Worldwide, fewer than a dozen countries have as many people in prison as the United States has in solitary confinement.
Solitary confinement goes by many names, including administrative segregation, disciplinary confinement, security housing and restricted housing, but it normally consists of 22 to 24 hours of lockdown in a small cell without human contact. It is now used routinely rather than being reserved for extreme situations, a practice which runs counter to international law. Terms in solitary confinement often extend to months, years or decades, even though it is known that more than 15 days in isolation causes psychological damage. And keeping someone in solitary is expensive, costing $70,000 to $75,000 annually, or three times as much as non-solitary incarceration.
The United States has imposed solitary confinement for more than 200 years. Almost immediately, the ineffectiveness and negative effects of solitary were evident. In 1890, the US Supreme Court wrote in, In re Medley, 134 U.S. 160, 168 (1890): "A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane, others, still, committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community."
However, except for a few state laws protecting the mentally ill, there are no laws in the United States prohibiting solitary confinement and courts have not taken action to prohibit it. Solitary Watch reports on many who are in isolation, such as William Blake, who is considered to be an escape risk and has been in solitary, administrative detention for 25 years. How does he handle it? "Dreaming is what helps him get through the long, colorless nights in the Security Housing Unit. "Sometimes I watch the roaches and I envy them," he writes:
Solitary confinement is one way to silence those who are politically active. Mother Jones reports on a case of two men, Black Panther members, who have been in solitary confinement for 40 years. They were convicted for killing a prison guard. Herman Wallace and Albert Woodfox, who as of last year were 70 and 65 years old respectively, spend 23 hours a day in cells measuring 6 feet by 9 feet. They are allowed one hour a day to take a shower or stroll along the cellblock. Three days a week, they may use that hour to exercise alone in a fenced yard.
Their defense lawyers and the prison psychologist describe severe mental anguish, anxiety, depression, memory loss and other symptoms. Bruce Cain, the warden of the Louisiana Penitentiary at Angola, said in a deposition that he would keep them in solitary no matter what they did because they still "practice Black Pantherism" and would "organize young new inmates."
Solitary confinement has severe psychological consequences and is considered torture in many countries. One study of suicides related to solitary quoted an inmate: "I started hearing voices and losing control of my own thoughts ... I really started noticing more when I started being in the hole ... It just started getting worse for me." Another study found two out of three suicides were among those held in solitary. Those held in solitary more frequently engage in self-mutilation, throw feces against the wall or take other actions to get attention and gain some human interaction.
While solitary confinement is difficult for healthy people, it has particularly severe consequences for those with mental illness. And roughly 20 percent of inmates suffer from serious mental illness. According to research compiled by the American Psychiatric Association, placement in settings of "extreme isolation" is inappropriate for these patients and will cause their condition to deteriorate. The result is a worsening cycle in which inmates with mental illness are placed in solitary, their condition is exacerbated and they become agitated, which results in an extended term in solitary.
Casella of Solitary Watch says "solitary confinement is the most important domestic human rights issue that most people have never heard of." Those with mental illness and juveniles are more likely to be placed in solitary. Children as young as 14 who entered the adult justice system are placed in solitary for their own protection, but they are subjected to the same conditions as others in solitary, including complete sensory deprivation. It is suspected that even younger children are placed in solitary in juvenile detention centers. Such treatment of youth is completely unheard of in other democratic countries.
The US prison system needs to recognize that solitary confinement does more harm than good and should be banned. Solitary Watch reports: "In 2006, the Commission on Safety and Abuse in America's Prisons, following a yearlong investigation, called for dramatic reductions and reforms on the practice of solitary confinement, noting the high recidivism rate and the viability of alternatives to solitary confinement." They viewed solitary as actually being "counter-productive." Their recommendations were to protect mentally ill prisoners, make sure that prisoners have "regular and meaningful human contact," only use solitary as "a last resort" and to "stop releasing people directly from segregation to the streets."
Solitary Watch summarized the international view: "European bodies have taken a more progressive view on solitary confinement, allowing it only after a medical examination certifies the prisoner fit to sustain the isolation and with daily monitoring of the prisoner's psychological state." In fact, the Convention Against Torture, to which the United States is a party, recommends that the use of solitary confinement be abolished.
How to bring about this change? It begins with education of the public that solitary confinement is overused, amounts to torture and is counterproductive. Change will happen when the public speaks out and takes action on behalf of prisoners. This is what ended the pretrial solitary confinement of WikiLeaks whistleblower Bradley Manning.
Prisoners have also taken action to improve their treatment. One famous effort was the Pelican Bay Prison hunger strike in 2011. On July 1, 2011, 6,600 prisoners began a hunger strike against solitary. One inmate, Todd Ashker, explained why they went on a strike: "We believe our only option of ever trying to make some kind of positive change here is through this peaceful hunger strike ... there is a core group of us who are committed to taking this all the way to the death if necessary." Director of Communications for Correctional Health Services Nancy Kincaid responded, "They have the right to choose to die of starvation if they wish." Throughout the strike, the media was kept away from the prisoners. The prisoners have not won their demand and another strike began this month.
Guantanamo Bay: Hunger Strike at the Death Camp
As we write this article, Guantanamo Bay prisoners have been on a hunger strike for seven weeks and national solidarity actions in support of the prisoners are taking place. There continue to be 166 people held in long-term detention without trial in the Guantanamo Bay prison. Of those, 86 were cleared for release three years ago because there is no evidence that they committed any crime and they are not a threat to the United States, but they remain incarcerated with no plans for release. Another 46 are stuck in limbo because they were "too dangerous to transfer but not feasible for prosecution." Only six prisoners have had any charges filed against them.
In a nation where the rule of law was actually applied, wouldn't the 166 prisoners, some of whom have been incarcerated for a decade, have been indicted and had a trial? Wouldn't a nation of laws only have six people, those actually facing charges, in prison? And wouldn't they get a real trial, not a manufactured military tribunal and limited due process designed just for them? Guantanamo shows how far the United States has strayed from the rule of law.
Prisoners at Guantanamo are on a hunger strike because death may be their only way out. The military admits 39 are on a hunger strike, but the lawyers of those in Guantanamo say half the prisoners are refusing to eat. The prisoners report abuse of the Koran during searches in February and worsening conditions. According to The New Yorker, "Many of the hunger-strikers had been the most compliant prisoners, the ones who got to go to art classes and live in group settings, not the most recalcitrant."
Navy Captain Robert Durand, a spokesman for the prison, told Agence France-Presse (AFP) that 11 of the hunger strikers were being force-fed with feeding tubes, while two of those had been hospitalized for rehydration and observation. David Remes, a lawyer representing 15 detainees, including 13 hunger strikers, reports the prisoners are prepared to die and calls the strike "the ultimate expression of desperation." The Red Cross visited the prison, but AFP reported that the prisoners do not trust them and would not talk to them.
These men are putting their lives at risk in order to get the world to hear their pleas. Cage Prisoners reports: "A detainee's attorney stated that his client lost 40 pounds which was a third of his entire body weight. Additionally, some hunger strikers have been coughing up blood, losing consciousness and being forced to move to other wings of the facility for observation." Despite this, they are not being heard, as the mass media does its best to ignore their suffering. No doubt, most Americans would prefer not to know what their country is doing to people at Guantanamo Bay.
The courts help to keep people in the United States and the world uninformed. In January, a federal court ruled that videos showing how inmates are taken from their cells could not be shared because doing so, the Obama administration claimed, could "incite the civilian population .. thereby putting U.S. military forces and its allies at increased risk." Judge John D. Bates refused to "second-guess" the government, finding "even solo images of detainees taken from the forced cell extraction videos could pose a substantial risk and danger to national security." If what the United States is doing is so ugly that it will inflame people, maybe the United States should reconsider what it is doing to these uncharged inmates.
Rather than closing Guantanamo as he promised, President Obama seems set on making the prison permanent. In January, the Obama State Department reassigned and has not replaced the official responsible for the closing of Guantanamo Bay. The commander of the base, Capt. John Nettleton, recently told Reuters that he wants to build a new cafeteria for the camp's personnel, along with a permanent barracks. New Defense Secretary Chuck Hagel is considering a proposal to spend $195.7 million to renovate the facility, which already costs $120 million annually to run.
While the continued operation of Guantanamo deserves blame in both Congress and the White House, President Obama overstates how much the Congress has stopped him. As president emeritus of the Center for Constitutional Rights Michael Ratner explains in this interview on the Real News Network, under the law passed by Congress, to transfer any person from Guantanamo to another country merely requires the Obama administration "notify Congress 30 days in advance."
"And there has to be a certification by the attorney general of various factors, that the person is not a danger," Ratner said. It seems that for almost everyone held at Guantanamo, certainly for the 86 cleared for release, Obama could make this certification and shrink the prison to irrelevancy. It seems there are a lot of good reasons for ending the death camp at Guantanamo, but dysfunctional government refuses to act.
Antidotes: Expose the Toxins and Create Real Security
The US prison system has become an embarrassment to the nation and to the principles which the United States claims to uphold. From police treatment on the streets through the courts and into the prisons, we should be ashamed at what activities are considered criminal and the way people are treated.
There is a desperate need to re-evaluate what is defined as crime and the extreme punitive approach being used and to move toward a system that is more just and dignified. There is empirical evidence from around the world, and within the United States of more effective approaches which reduce crime and recidivism, cost less and build communities. But as it is with so many solutions to the crises we face, those who are most affected do not have the right to a political voice.
In fact, as the attorney King Downing emphasizes, the real criminals are those on Wall Street who control the political process and exploit people for profit. Wall Street is also responsible for the severe wealth inequality in the United States, one of the most unequal countries in the world. And as described in the book The Spirit Level, wealth inequality is linked to poor performance in many indicators of social well-being.
If the United States were really concerned about security, it would create a strong social infrastructure that provides quality education, affordable health care and housing, and full employment at a living wage. But such policies would lead to an empowered population that would resist Wall Street's efforts to profit from everything no matter the cost to people and the planet.
It is the job of conscious citizens to educate, organize and mobilize for positive change. Films such as Herman's House and The House I Live In are being used to raise awareness and stimulate discussions.
The prison-industrial complex is a symptom of a larger problem: economic and political systems that allow exploitation for profit. An industry that profits from incarcerating people shouldn't exist. Activism is needed to investigate what is happening and to demand transparency, accountability and effective solutions.
There are signs that this is beginning to happen. Some groups have targeted Wells Fargo with regular protests because they are the largest investor in GEO, a private prison corporation. This resulted in the bank dumping 75 percent of its investment in the company. Students at Florida Atlantic University protested when they learned that the school planned to name its football stadium for GEO. These positive steps are antidotes to the fruit of the poisonous forest that surrounds us.
You can hear the interview with King Downing and Jean Casella on racism, mass incarceration, solitary confinement and Guantanamo Bay here.