August 21st, 2019

#ChangeLawyers Meet the lawyer fighting for revenge porn laws and Me Too victims

After a man she had dated went on a frightening and intense campaign of online abuse, attorney and author Carrie Goldberg was stunned by how the American justice system failed to protect her. And she knew she couldn’t be alone. “I quit my job, and I decided I was going to become the lawyer I had needed,” she told Mary Elizabeth Williams on “Salon Talks.”

Watch the interview on  on Youtube

Say it Louder Slavery gave Americans a fear of Black people and taste for violence. Both still define our criminal justice system.

The following essay was written by Bryan Stevenson, a civil rights lawyer and executive director of the Equal Justice Initiative and the author of “Just Mercy: A Story of Justice and Redemption.”

Several years ago, my law office was fighting for the release of a black man who had been condemned, at the age of 16, to die in prison. Matthew was one of 62 Louisiana children sentenced to life imprisonment without parole for nonhomicide offenses. But a case I’d argued at the Supreme Court was part of a 2010 ruling that banned such sentences for juveniles, making our clients eligible for release.

Some had been in prison for nearly 50 years. Almost all had been sent to Angola, a penitentiary considered one of America’s most violent and abusive. Angola is immense, larger than Manhattan, covering land once occupied by slave plantations. Our clients there worked in fields under the supervision of horse-riding, shotgun-toting guards who forced them to pick crops, including cotton. Their disciplinary records show that if they refused to pick cotton — or failed to pick it fast enough — they could be punished with time in “the hole,” where food was restricted and inmates were sometimes tear-gassed. Still, some black prisoners, including Matthew, considered the despair of the hole preferable to the unbearable degradation of being forced to pick cotton on a plantation at the end of the 20th century. I was fearful that such clients would be denied parole based on their disciplinary records. Some were.

The United States has the highest rate of incarceration of any nation on Earth: We represent 4 percent of the planet’s population but 22 percent of its imprisoned. In the early 1970s, our prisons held fewer than 300,000 people; since then, that number has grown to more than 2.2 million, with 4.5 million more on probation or parole. Because of mandatory sentencing and “three strikes” laws, I’ve found myself representing clients sentenced to life without parole for stealing a bicycle or for simple possession of marijuana. And central to understanding this practice of mass incarceration and excessive punishment is the legacy of slavery.

It took only a few decades after the arrival of enslaved Africans in Virginia before white settlers demanded a new world defined by racial caste. The 1664 General Assembly of Maryland decreed that all Negroes within the province “shall serve durante vita,” hard labor for life. This enslavement would be sustained by the threat of brutal punishment. By 1729, Maryland law authorized punishments of enslaved people including “to have the right hand cut off ... the head severed from the body, the body divided into four quarters, and head and quarters set up in the most public places of the county.”

Soon American slavery matured into a perverse regime that denied the humanity of black people while still criminalizing their actions. As the Supreme Court of Alabama explained in 1861, enslaved black people were “capable of committing crimes,” and in that capacity were “regarded as persons” — but in most every other sense they were “incapable of performing civil acts” and considered “things, not persons.”

The 13th Amendment is credited with ending slavery, but it stopped short of that: It made an exception for those convicted of crimes. After emancipation, black people, once seen as less than fully human “slaves,” were seen as less than fully human “criminals.” The provisional governor of South Carolina declared in 1865 that they had to be “restrained from theft, idleness, vagrancy and crime.” Laws governing slavery were replaced with Black Codes governing free black people — making the criminal-justice system central to new strategies of racial control.

These strategies intensified whenever black people asserted their independence or achieved any measure of success. During Reconstruction, the emergence of black elected officials and entrepreneurs was countered by convict leasing, a scheme in which white policymakers invented offenses used to target black people: vagrancy, loitering, being a group of black people out after dark, seeking employment without a note from a former enslaver. The imprisoned were then “leased” to businesses and farms, where they labored under brutal conditions. An 1887 report in Mississippi found that six months after 204 prisoners were leased to a white man named McDonald, dozens were dead or dying, the prison hospital filled with men whose bodies bore “marks of the most inhuman and brutal treatment ... so poor and emaciated that their bones almost come through the skin.”

Anything that challenged the racial hierarchy could be seen as a crime, punished either by the law or by the lynchings that stretched from Mississippi to Minnesota. In 1916, Anthony Crawford was lynched in South Carolina for being successful enough to refuse a low price for his cotton. In 1933, Elizabeth Lawrence was lynched near Birmingham for daring to chastise white children who were throwing rocks at her.

It’s not just that this history fostered a view of black people as presumptively criminal. It also cultivated a tolerance for employing any level of brutality in response. In 1904, in Mississippi, a black man was accused of shooting a white landowner who had attacked him. A white mob captured him and the woman with him, cut off their ears and fingers, drilled corkscrews into their flesh and then burned them alive — while hundreds of white spectators enjoyed deviled eggs and lemonade. The landowner’s brother, Woods Eastland, presided over the violence; he was later elected district attorney of Scott County, Miss., a position that allowed his son James Eastland, an avowed white supremacist, to serve six terms as a United States senator, becoming president pro tempore from 1972 to 1978.

This appetite for harsh punishment has echoed across the decades. Late in the 20th century, amid protests over civil rights and inequality, a new politics of fear and anger would emerge. Nixon’s war on drugs, mandatory minimum sentences, three-strikes laws, children tried as adults, “broken windows” policing — these policies were not as expressly racialized as the Black Codes, but their implementation has been essentially the same. It is black and brown people who are disproportionately targeted, stopped, suspected, incarcerated and shot by the police.

Hundreds of years after the arrival of enslaved Africans, a presumption of danger and criminality still follows black people everywhere. New language has emerged for the noncrimes that have replaced the Black Codes: driving while black, sleeping while black, sitting in a coffee shop while black. All reflect incidents in which African-Americans were mistreated, assaulted or arrested for conduct that would be ignored if they were white. In schools, black kids are suspended and expelled at rates that vastly exceed the punishment of white children for the same behavior.
Inside courtrooms, the problem gets worse. Racial disparities in sentencing are found in almost every crime category. Children as young as 13, almost all black, are sentenced to life imprisonment for nonhomicide offenses. Black defendants are 22 times more likely to receive the death penalty for crimes whose victims are white, rather than black — a type of bias the Supreme Court has declared “inevitable.”

Read the story on NY Times 

Speaking Of… The justice system doesn’t need to be cruel to keep people safe 

The following editorial was written by reform prosecutors Mark Gonzalez of the Nueces County, Tex., district attorney and Wesley Bell, county prosecutor for St. Louis County, Mo. Parisa Dehghani-Tafti is the Democratic nominee for commonwealth’s attorney in Arlington.

In a speech week to the Fraternal Order of Police, Attorney General William P. Barr lamented “the emergence in some of our large cities of district attorneys who style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook and refusing to enforce the law.”

On the evening that one of us (Parisa Dehghani-Tafti) won the Democratic nomination for commonwealth’s attorney in Arlington, Del. Todd Gilbert, the Virginia House GOP leader, similarly tweeted: “These social justice prosecutors will inevitably get their citizens hurt, robbed, burglarized or much worse because of their approach to crime.”

Sounds awful, but don’t worry: There is a vast distance between what Barr and other opponents of progress in criminal justice say reform prosecutors believe and what we actually believe. Allow us to summarize.

We may differ in the details, but as prosecutors committed to reforming our justice system, we believe: Not every social problem should be criminalized. We shouldn’t use cash bail to keep poor people in jail when similarly situated but wealthier people can pay to go home. We should aim to help victims recover from the trauma of crime and listen to what will help them heal, instead of using their pain to obtain the harshest possible sentences.

We believe that the default approach to children who make mistakes should be diversion and education rather than incarceration. People suffering from mental illnesses or substance-use disorders should be offered treatment rather than jail. It is unfair to saddle a new generation with criminal records for simple marijuana possession.

We also believe that no system can achieve justice if it tolerates racial and class disparities. Citizens returning from incarceration should be afforded the right to vote and to be productive members of our community. And the death penalty has no place in a civilized society.

These beliefs are neither radical nor novel. They clearly hold appeal to many voters. They are also backed by decades of research and data. But they certainly do not, as Barr cavalierly claims, “undercut the police or let criminals off the hook.”

To the contrary, the election of reform prosecutors leads to a decrease in unfair prosecutorial practices with no increase in crime. Between 2007 and 2017, 34 states reduced incarceration without a resulting increase in crime. In Philadelphia, reform District Attorney Larry Krasner has reduced the jail population by about 30 percent, reduced the length of sentences by 46 percent and declined to prosecute certain categories of simple marijuana possession, all without a significant rise in serious crimes. In her first year in office, Boston’s District Attorney Rachael Rollins has dismissed 40 percent more cases of petty crimes than her predecessor, permitting prosecutors to focus on serious crimes and address “cold” cases.

In Baltimore, State’s Attorney Marilyn Mosby’s decision to stop prosecuting marijuana use will free up resources to address an unacceptably high murder rate. And, in St. Louis County, Mo., one of us (Wesley Bell) has reduced the jail population by 20 percent in six months while expanding diversion treatment for low-level offenders and working with the 55 area police departments to streamline officers’ interactions with the prosecutor’s office.

Opponents inevitably cherry-pick isolated instances of individual crimes to argue against reform. But they rarely acknowledge that “tough on crime” policies have resulted in the costly incarceration of individuals beyond the need to protect the community.

Read the story on Washington Post 

More of This She sent her staff to prison so they can unlearn their reflect to incarcerate

Sarah Fair George, the state’s attorney of Chittenden County (home to Burlington) in Vermont, has instructed all staff and prosecutors who work in her office to visit the St. Albans prison, also known as the Northwest State Correctional Facility. “Most prosecutors have never stepped foot in the buildings that they sentence people to spend years in,” she wrote on Twitter. “That needs to change.”

I talked to George on Wednesday about her initiative, and how it could change practices in her office. She said prosecutors often treat prison time “nonchalantly,” as something abstract, and get in the habit of “just throwing out numbers.” “We say six months or two years, and don’t really have to think about what it means for the person,” she explained. 

“It’s important to stand in that space and see it for yourself, and feel it for yourself,” she added. “My hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days can be enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.”

George said this perspective should fuel shorter sentences, but also restrain prosecutors from seeking incarceration in the first place. “They spent an hour and a half there and were relieved to get out,” she said of staff members who have already visited St. Albans as part of her initiative. “So let’s imagine how this might impact somebody who is there for six months or a year, and how this impacts them as a community member when they get back out. Is there a way that we can avoid that entirely, and not risk them coming out a more violent person or with some type of trauma having been in jail? Can we find another way?”

Her comments flip the typical way opponents of criminal justice reform react to cases of recidivism to argue that people were not treated harshly enough. Instead she suggested that some instances of recidivism should force prosecutors to confront the failures of incarceration. “That hasn’t worked, that person is back. Maybe we need to find another way to address this particular person,” she said.

Read the story on The Appeal 

More of This Too How incarcerated men are unlearning toxic masculinity 

It’s been 10 years since George Luna was behind bars, but he still goes back to correctional facilities on a regular basis. He has spent most of his life cycling in and out of the justice system in Northern California. Now, he says he’s out for good and he’s looking to help other inmates do the same.

The former inmate is a facilitator of a prison rehabilitation program that teaches men about gender roles and how ingrained ideas of masculinity have contributed to their violent crimes. GRIP, or Guiding Rage into Power, started at San Quentin State Prison in 2013 and has expanded to five state prisons across California.

“First and foremost, we can cry,” Luna said to inmates gathered for a training in May at Avenal State Prison. “We can show emotion, and I’ll be honest with you, that’s a courageous motherfucker who’s willing to stand up and show his emotions and, through tears and all, be courageous and tell his story.” 

Luna lives in Hollister, California, but sometimes travels up to six hours to facilitate the trainings.

“When I leave, I probably cry maybe two, three times, thinking about the day, about things that happened,” Luna told HuffPost after arriving at his motel near the prison. “It’s just — I got to compartmentalize while I’m there. But when I get out, some things hit me hard when I hear some of these guys’ stories.”

During the trainings, inmates open up about their traumatic experiences, such as sexual assault, abandonment by their family and domestic violence inflicted by loved ones. Revisiting what they call this “original trauma” is an integral part of their work. It’s the experiences they had as young boys that formed the basis of their coping mechanisms and survival tactics.

“I’ve been a vicious person most of my life, my young and adult life, and in and out of prison,” said Harold “Happy” Miller, a GRIP member and former member of the Hells Angels Motorcycle Club. “And in sentencing, the judge deemed me an extreme menace to society and a cyst growing on the spine of life. I made my mother scared of me.”

The trainings at Avenal take place once a month over 12 months. Throughout the program, inmates learn about the “male role belief system.” They learn that when men live “inside the box,” they’re only allowed a narrow field of emotions ranging from anger to indifference. It’s what many might recognize as some of the basic tenets of feminism.

“I’m gonna act tough and in charge. That was me,” said Michael Cabral, a current inmate and facilitator at Avenal. “Now look at me. Thirty-two years old and I went to shit because I’m doing fucking 16 years to life in prison. All because what? I didn’t want to be loving? But that’s who I truly am.”

Luna said learning these lessons transformed his life. He recalled seeing family members assault their wives and how it warped his perception of the world. 

“Society says the male dominates,” Luna said. “They try to breed it in you that you can’t be anything else, except [a] masculine, hardcore, callous person, but men can be loving and have compassion.” 

Most of the inmates have gone through other prison rehabilitation programs. But GRIP is different, they said, because the work they do inside the training goes deeper than other programs. 

“What this has done for me in here this past year, it’s giving me back, once again, my humanity,” Miller said. “I gained my empathy back towards people. And my emotional intelligence is right now over-the-top for me. And it’s restored my faith that my mother used to have in me today and my children.”

Read the story on Huffington Post 

Less of This The people trying to roll back California’s criminal justice reform 

In November 2017, Sacramento County District Attorney Ann-Marie Schubert, Democratic Assemblymember Jim Cooper, and activist Marc Klaas, stood at a lectern and announced that they were drafting a ballot measure. The measure, the Reducing Crime and Keeping California Safe Act of 2018, would roll back the criminal justice reforms that state voters had approved in recent years, reforms that had put California at the cutting edge of reducing incarceration. 

Cooper, reading from a script, declared: “Recent changes to California law have also allowed persons who repeatedly steal to face very few consequences regardless of their criminal record or how often they steal.” He went on to argue that those who commit nonviolent crimes are often “linked to more serious violent crimes of rape and murder” in the future.

Under the organizational umbrella Keep California Safe, Cooper, alongside other pro-law enforcement elected officials like Schubert, has waged a public campaign against successful criminal justice reforms. A 2017 study confirmed that despite slight upticks in the state’s crime rates in recent years, crime remains historically low. (Experts believe that some of the slight uptick in nonviolent crime could be related to changes in the law.) But according to Cooper, reforms like Proposition 47, which reduced certain nonviolent offenses to misdemeanors, and Proposition 57, which increased good-time credits for those serving prison sentences, have opened the door to “repeat offenders” who commit low-level crimes. Cooper did not respond to an interview request or a list of specific questions for this story.

In a state often stereotyped as liberal, Cooper represents the pro-law enforcement forces at work, and the discontent stewing in conservative suburbs far from Hollywood and Silicon Valley. Although the Keeping California Safe Act did not make the 2018 ballot, it is set to go before voters in 2020. To understand the anti-reform movement building in California, you have to understand Jim Cooper.

Read the story on The Appeal

Perspective Profiling Muslims after 9/11 was wrong. Profiling whites after mass shootings won’t help us fight white supremacy.

The following editorial was written by Amardeep Singh, a senior program officer with Open Society-U.S. at the Open Society Foundations. Follow him on Twitter @amarHoboken.

The tragic attacks earlier this month reminded the nation what many have long known to be true: Most violent domestic terrorism now originates from white supremacists, according to multiple and varied sources. And yet despite the mass shooting in El Paso, Texas, carried out by a white male, I am acutely aware that my white friends and neighbors may go on with their lives without the fear that they will be affected by anger over the white identity they share with the perpetrator—a privilege that my Muslim, Arab and South Asian friends and neighbors cannot enjoy whenever somebody of the same faith or ethnic background carries out a terrorist attack.

Here are some, but not all, of the things that won't befall my white friends and neighbors post-El Paso (or Charleston, Charlottesville, Pittsburgh, Christchurch, Poway, Gilroy and the like):

• A surge in violent hate crimes
• Knowing that their kids will endure school bullying
• The desecration of their houses of worship
• Family members being "Muslim Banned" from visiting you
• Unnecessary, humiliating airport searches and hours of invasive questions at U.S. ports of entry
• Mass surveillance of one's community
• Knowing people who are prioritized for deportation because they share your ancestry
• Being put on the "No Fly" list for no known reason
• Having your U.S. passport confiscated for no known reason
• Being fired from a job because you are deemed "terrorist"
• Being less likely to be interviewed for a job for having a "Muslim-sounding" name
• Being expected to apologize continually for terrorists you do not know and abhor

Not having to endure the above, not having to endure guilt by association, sure seems like white privilege to me.
Race and identity are the only reasons why my white friends may carry on with their lives after El Paso without worry, but my Muslim, Arab and South Asian friends could not after Paris. Or El Paso and Dayton, Ohio, for that matter. In the days following those shootings, a Muslim-owned business in California had the words "No Muslims" spray painted on it. Another business in Connecticut was defaced the words "Muslims go home."

So how do we move forward? The answer is not that we should treat white supremacists like we treated suspected terrorists after 9/11, as some argue. To overcome white supremacy, we do not need, nor should we want, a bigger, more intrusive national security state.

I say this for three reasons. First, we already have ample legal tools to defeat white supremacist violence. There are already 51 domestic anti-terrorism laws on the books—more than enough to investigate and prosecute violent white supremacists. Moreover, we should be wary of giving the federal government even more emergency powers to surveil whole populations, particularly since structural bias has consistently led to these laws inevitably being overused on communities of color.

Second, the post-9/11 experience demonstrates that broad profiling and surveillance are highly ineffective and end up creating more problems than they solve. For years, the New York City Police Department engaged in mass surveillance of Muslims in New York City: Muslims eating chicken, Muslims walking in the park, Muslims going to the ATM, Muslims dropping their kids off at school. That colossal waste of time led to zero arrests. Over time, what investigators learned is that constitutional, rights-respecting investigations based on reasonable suspicion is what works. Moreover, some of our worst excess after 9/11 lent terrorist recruiters the rhetorical ammunition they needed to make their case to confront the United States with further violence.

Third, it is just plain wrong to deprive whole classes of people their rights in the name of security. When we do, we lose the very idea of the United States, with liberty and justice for all, we are trying to protect in the first place.

So how should we address this scourge? First, the federal government must make combating violent white supremacists a clearly articulated policy priority. Until the Monday after El Paso, President Donald Trump, who has fanned the flames of hatred with virulent rhetoric, had not identified white supremacy as an issue in American life. The Department of Homeland Security disbanded a group of domestic terrorism intelligence analysts this past spring and last year canceled grants to counter white supremacist terrorism. These moves should be reversed immediately, and law enforcement, with support from the White House, needs to make this fight a core mission.

Second, the scope of white supremacist violence needs to be better understood. In 2017, Senator Richard Durbin introduced the Domestic Terrorism Prevention Act, which would require federal agencies to prepare an annual report on domestic terrorism and the ways in which the federal government allocates resources to combat it. At present, the FBI is unable to report reliably on how many white supremacist attacks are occurring each year because the way it tracks this information has shifted with time and the political winds. You cannot solve a problem you don't understand.

Read the story on Newsweek  

Award of the Week The best civil rights lawyer you’ve never heard of

Oscar Grant. Mario Woods. Alex Nieto. When the names of these Black and brown men who have died at the hands of police surface in the Bay Area, most think of civil rights attorney John Burris as their surviving families' champion. But of the roughly 60 cases the Burris Law Firm is handling right now, attorney Adante Pointer, is overseeing more than a third of them. "I'm shepherding the grieving families through a process to get justice when they've been denied it through the criminal process and disciplinary process for officers," Pointer told his alma mater, UC Hastings, in 2016. "The ability to act as a shield and sword to those who are defenseless is rewarding." Often the jury verdicts do pay off. In 2007, Pointer and a colleague won a $6 million verdict from Oakland for a couple who said police had barged into their home and falsely arrested them on charges that they had a rifle. And he's had plenty more successes since. Among the most recent: In July, a federal jury recommended that the family 18-year-old Anthony Nunez — represented by Pointer — receive $2.6 million after they found two San Jose police officers liable for his death in 2016. 

Read the story on East Bay Express