A truly just system must do more than protect the rights of the innocent; it must also respect the humanity of the guilty.
Nothing has changed more in the past couple of decades than attitudes toward the crisis of incarceration in America. What was largely an invisible civilization of confinement—millions of men and women locked up for, cumulatively, millions of years—is now a commonplace concern. Everyone running for the Democratic nomination pays lip service to the need to address mass incarceration, and what were once essential political instincts—to side with the police and the prosecutors in every instance, to “get tough on crime”—have become, at the very least, negotiable. We have gone from “Lock ’em up!” to “Lock ’em up?” to “Set ’em loose!,” all in a relatively short time.
One reason for these changed attitudes is the great crime decline, a falling arc that meant that, for the first time in decades, ordinary citizens could care more about the consequences of imprisonment than they did about the threat of violent crime. Circles of compassion can grow in the absence of everyday fear: safer subways make for an expanded conscience. But there has been an ongoing argument about what, exactly, is responsible for the surge in incarceration. For a long time, the consensus blamed three-strike laws, mandatory minimum sentences, stop-and-frisk, and the rest of the oppressive apparatus of panicked anti-crime policy. Then, just two years ago, the law professor John Pfaff made the argument, persuasively, that the key factor was simply prosecutorial overreach.
There were too many prosecutors who had the astounding freedom to indict anyone more or less as they chose, and who could so overcharge the indicted that plea bargains were forced upon good and bad alike, as confessions were once forced by the Inquisition. By handing enormous discretion to prosecutors—some of them, by the standards of the rest of the world, properly described as politicians, elected to their office and sensitive to voters’ needs, including a metric of success linked to putting people in jail—we had given them the freedom to imprison whomever they wished for as long as they liked. All but about five per cent of criminal cases are resolved by plea bargains, and never go to trial. In the vast majority of cases, Pfaff observed, in his book “Locked In,” inmates ended up behind bars “by signing a piece of paper in a dingy conference room in a county office building.” After 1990, as the crime rate began to fall, the number of line prosecutors soared, and so did the number of the incarcerated. Fewer offenses, more designated offenders.
Now the legal journalist and Times Magazine staff writer Emily Bazelon, in her book “Charged” (Random House), puts flesh and faces to Pfaff’s statistical and largely abstract proposition. “Charged,” though far-reaching in purpose, is above all a study of two cases in which prosecutorial misconduct or overreach put two people through hell. She tells these stories in microscopic detail, analyzing the background of each bizarre stop along the infernal circle—why bail is so hard to get and why it exists at all; why public defenders are often so inadequate—in a way that allows the specific case stories to become general truths. Her book achieves what in-depth first-person reporting should: it humanizes the statistics, makes us aware that every courtroom involves the bureaucratic regimentation of an individual’s life. She has a good ear for talk, and a fine eye for detail; at one point she makes the slightly hallucinatory discovery that the recently elected Brooklyn D.A., Eric Gonzalez, chose his career path after reading Tom Wolfe’s “The Bonfire of the Vanities” as a teen-ager—not an obvious book to point someone on a path toward public service. (He was fascinated not by the deep cynicism of Wolfe’s view but by the way that the D.A. in the novel is able, heroically, to even things up with a Master of the Universe—proof, again, that we find in books what we want to find in books.)
Yet, though Bazelon’s larger points about the madness of prosecutorial power are all impeccably well taken, the two central cases she uses to illustrate these points are somewhat surprising choices. It wouldn’t be hard to find, among the tens of thousands of cases that are plea-bargained in New York City alone every year, one in which a poor kid is penalized by a law that’s out of all proportion to the offense—there are kids who get locked up for drug offenses that in nearby states are no longer even misdemeanors. But Bazelon has written about a twenty-year-old black New Yorker, whom she calls Kevin, who has been arrested for the illegal possession of a loaded handgun and, given his particular charge, was subject to two years of imprisonment, the “mandatory minimum” stipulated by New York’s strict anti-handgun laws. Kevin may well have been, as he insists and as Bazelon accepts, little more than an innocent third party to the gun offense—“holding” the gun for friends rather than using it, or intending to use it, in the commission of a crime. But his prospective sentence was not simply a result of prosecutorial overreach; it was an unintended outcome of well-intended efforts at gun control. Gun violence is an especially brutal plague in poor and minority neighborhoods, and Bazelon acknowledges that Bill de Blasio, the city’s most progressive mayor in decades, has been even more rigorous than his predecessors in encouraging these mandatory-minimum gun-possession indictments.
It’s also true that, on the evidence, there was nothing to be gained by having Kevin in jail for two years, and that his life could well have been maimed as a result. Bazelon suggests that greater prosecutorial discretion is needed in enforcing a law that can unduly punish a kid like Kevin—indeed, she points out that in some jurisdictions in the city there’s a healthy unspoken understanding that kids like Kevin won’t be charged under the law, using various wiggle-room maneuvers to get them out.
A certain irony of this case is that our sense of justice here demands not less but more prosecutorial discretion—more power to charge or not to charge. Remedying the injustice that the law may produce means adding ever more layers of adjudication. In a book about how the punishment of mere misdemeanors can have life-altering consequences, “Punishment Without Crime” (Basic), Alexandra Natapoff calls this process “net widening”: it includes the attempts, which Bazelon tracks in Kevin’s case, to move his offense out of the normal criminal courts and into a special “diversion” program. This adds bureaucratic labyrinth to unjust arrest. “Each of these reforms makes room for more people in the system,” Natapoff, a law professor at U.C. Irvine, writes. Kevin’s case is less an example of reckless prosecution than it is an example of the unbreakable rule of unintended consequences. A well-meant law caught the wrong kid.
The central case in Bazelon’s book was the subject of a Times Magazinearticle that she published in 2017, from which the book evidently grew. It’s the case of Noura Jackson, in Memphis, who was convicted in 2009 of brutally murdering her mother, Jennifer Jackson, a thirty-nine-year-old investment banker, and given a sentence of some twenty years. Noura, as Bazelon calls her, served nine years in prison before the Tennessee Supreme Court found that prosecutorial misconduct had been significant enough to overturn the verdict, and ordered a new trial. (After another year, she was then effectively released on time served.) The Shelby County prosecutor, Amy Weirich, had kept a potentially helpful witness statement from the defense, and, in effect, berated Jackson in her summation for not testifying—an outrageous violation of Fifth Amendment protections against self-incrimination.
The case was a strange one. Noura Jackson, then eighteen, claimed that, after a night of partying, she returned home and discovered her mother’s bleeding body at around five o’clock in the morning. Jennifer Jackson, it turned out, had been stabbed fifty times—instantly marking her murder, to law enforcement, as a “crime of rage,” almost certainly committed by someone who knew the victim well, rather than as a crime of convenience or a burglary gone wrong. One can argue about whether these “profiling” generalizations are empirically sound, but they are prevalent.
And so suspicion fell on Noura, particularly after a relative maintained that Noura had quarrelled with her mother about the dispensation of her estranged father’s estate. (In a stranger-than-cable-television detail, Noura’s father, who ran a convenience store, had been murdered the year before, and surveillance video showed his killers ransacking the store in what appeared to be a desperate search for some unknown object.)
All in all, the case was as atypical as any case can be. Most plea bargaining and imprisonment are, as Pfaff argued and as Bazelon agrees, destructive because invisible; this case, involving the murder of a white middle-class woman in strange circumstances, was anything but. Far from being resolved in one of those dingy rooms Pfaff writes about, this was a hugely publicized, Nancy Grace-style “Court TV” case, steadily sensationalized by the media.
The most damning piece of evidence was a 4 a.m. visit that Noura made on the night of the murder to a Walgreens, where she bought hydrogen peroxide, bandages, and “liquid skin,” and asked a clerk for a paper towel to help stanch her bleeding hand. This seemed, to the prosecutors, all the more incriminating because Noura at first failed to mention the incident to the police, while her later explanations of how and where she had injured her hand changed often
and in suspicious ways. At one point, she insisted that she had burned it while making macaroni and cheese, despite its having been freshly bleeding on the night of the murder. In a call taped by the police, her mother’s sister asked Noura where she was that night, and she answered, “I don’t know.” (Noura tells Bazelon that her aunts had always been prejudiced against her because her father was Lebanese.) Bazelon further notes that none of Noura’s DNA was found at the scene, and that her manicured hands were otherwise immaculate. She also mentions a rumor that the murders of both of Noura’s parents were linked by her father’s alleged participation in a prostitution ring.
Especially difficult to explain is the evidence—which Weirich referred to in a letter that she sent to the Times in response to Bazelon’s piece, and which the paper never printed—of a phone call from inside the Jackson house to a close friend of Noura’s at 12:59 a.m., presumably right around the time of the murder, followed, ten minutes later, by a call from Noura’s cell phone to the same friend. It is hard to see why the mother would have phoned someone who was a stranger to her, and more plausible that it was Noura who first used the landline before switching to her cell. If so, Noura was at least inside the house, which she had denied, around the time of the murder. The matter of her innocence, then, may be less certain than Bazelon supposes. Certainly, no one else has ever been accused of the crime, nor, it seems, has there been even a plausible second suspect. Weirich might well have secured a conviction even if she hadn’t broken the rules.
But she did. There’s no doubt that Noura Jackson became, at trial, the victim of prosecutorial misconduct. Noura had been counselled by her lawyer not to testify—she was on antidepressants, and, anyway, defense attorneys are generally reluctant to allow their clients, however innocent, to be grilled by a skilled prosecutor—and Weirich shamefully took advantage of Noura’s silence to poison the minds of the jurors. “Just tell us where you were,” she shouted. “That’s all we’re asking, Noura!” Weirich concealed from the defense a statement by a friend of Noura’s in which he said that he had been high on Ecstasy on the evening in question and contradicted an earlier account, which had made it seem that Noura had been trying to contrive a coverup. The prosecutorial abuse here arose not from bureaucratic callousness but from a very different psychological process: passionate personal conviction. Because Weirich was absolutely convinced of Noura’s guilt, she was prepared to go to almost any length to convince the jury of what she believed to be true.
There’s a curious logic to the way the lurid and memorable Jackson case stands in for so many other instances of prosecutorial overreach. We tend to understand common experience through the symbolic form of uncommon experience. Indeed, American cultural history could probably be parcelled out as a sequence of sensational murder cases. There was nothing remotely “typical” about the Manson murders or, for that matter, about the O. J. Simpson case, but one came to stand for the disillusion and decline of sixties hippie innocence, the other for the enduring American racial divide. A history of America told through its murders is sensitive to the mood of each period. It’s perhaps significant that, in the nineteen-sixties, questions of misconduct were usually tied to the behavior of the police—this magazine ran a three-part piecedetailing police misconduct in the once famous “Career Girl Murders” of 1963—while these days we focus on the prosecutors, implicating the system’s managers, not simply its laborers.
“Charged” is meant to, and does, provoke pity and terror in us at the sheer inhumanity of all imprisonment. Especially because Bazelon conveys a sense of Noura’s innocence as a thing proven, her account of the long years of Noura’s imprisonment—her desperate search for normalcy, decency—will make you weep to read. A small charm in her brutal years of confinement is that she was befriended by another inmate, Octavia Cartwright, who seems precisely the kind of person the system most casually brutalizes. After breaking into a woman’s home in search of drugs and beating the woman unconscious with the butt of a gun, Cartwright refused a plea bargain that would have given her a twenty-five-year sentence for the nonfatal attack. The prosecutor, in the standard way that prosecutors exact revenge on a suspect for refusing to plead guilty, obtained at trial a sentence of ninety-one years. Cartwright was put in prison for life for one desperate, drug-fuelled incident. Her struggle to make sense of an existence now permanently enclosed within a prison’s walls is one of the more moving accounts in Bazelon’s book.
Cartwright’s story reminds us that the critical cases in arguing about incarceration are the cases not of the innocent but of the guilty. If we believe that Noura Jackson was innocent, it is easy to be indignant about her years in prison. The challenge is to justify her incarceration if we stipulate that she wasn’t. Say, for the sake of argument, that she had murdered her mother. What larger cause would have been served by locking her up, sometimes in solitary, for twenty years without the possibility of parole? Presumably, we want a severe social sanction against matricide; parents will certainly think so. But would a night of crazy rage justify the years—it might well have been a lifetime—of despair and misery enforced by the state? Convinced of Noura’s guilt, should we read the account of her years of imprisonment with a sense of justice done? To put it in the sharpest possible register: would it have been what her mother wanted?
In this respect, again, Bazelon’s specific case seems an odd one to make her point. What we seek from a sense of indignation about America’s criminal-justice system is not to release the innocent but to humanize the treatment of the guilty. Even if all the prisoners had done what they were imprisoned for, the moral question remains whether anyone deserves to be put in a bathroom-size cell for the rest of his or her life.
Making the case for the deincarceration of America means, typically, making the case that the people who get locked up are as much victims of society as they are wicked perpetrators of crime. Born into disadvantage, they arrived, in a sense, imprisoned already. Most of the current crop of books on crime and incarceration make this point in one way or another: Natapoff’s book on misdemeanors makes us aware of how we lock up poor people for long periods for the tiniest of offenses; Erin Kelly’s “The Limits of Blame” gives us a philosopher’s take on the concept of criminal “guilt,” on how easily we miss the larger social context in which crime takes place, and how we need to broaden our blame in order to adjust our justice. In “Prisoners of Politics,” by Rachel Elise Barkow, the dream of ending mass incarceration is rooted in a list of small but effective-sounding reforms, including things as simple as putting ex-inmates on sentencing commissions. Danielle Sered, in “Until We Reckon,” offers a testament to an extralegal process called “restorative justice.” Essentially, it brings perpetrators of violent crimes face to face with their victims in an effort to make both sides see each other not merely as captives of categories—bad person, good person—but as human beings caught in often painful and resistant circumstances. How far such reconciliations can go, and how violent an act the victim is prepared to forgive, or at least understand, is not always clearly defined, but the attempt to move past indictment and incarceration to some social process that holds out hope for transformation rather than just punishment is obviously possessed of moral energy.
The heroic rhetoric of class warfare that sometimes inflects these books can mask the truth that the progress in the past decade concerning the crisis of incarceration has in large part been made on classically American reformist terms. As Bazelon ably reports, the reality of the anti-incarceration movement in this country is that rich philanthropists have been footing much of the bill, prompted simply by evident injustice. George Soros’s foundations have poured millions into supporting anti-incarceration initiatives, and so, astonishingly, have the Koch brothers—some libertarians really do like to see people at liberty, it seems.
But what all of these efforts appear to have in common is an attempt to move us out of the crisis of incarceration by moving us past the question of “guilt,” making us see that the categories of guilty and innocent, whether applied to the wrongdoer or to the one done wrong, miss harder social truths, and replace empathy with bureaucratized vengeance. “The crime is what you did, it’s not who you are” is an aphorism of anti-incarceration activists, and this perspective enlivens almost all the reformist literature.
And so the plethora of new books can sometimes seem to sit just outside the hardest issue. The hardest cases aren’t those of harmless victims of mandatory-minimum laws, like Kevin. The cases that test our convictions involve offenders whose crimes have had real social and human costs. What do we do about the violent carjacker, the armed robber, the brutal assailant? Such people exist, of all kinds and colors, and wishing away the problem of impulsive evil by assimilating it to the easier problem of our universal responsibility for social inequities doesn’t help solve it. It’s often said that white-collar criminals should not be treated better than no-collar ones, and yet the taste for punishing the white-collar miscreant is no less vindictive—indeed, there’s depressing social-science research showing that, once people are made aware of the inequities of the American criminal-justice system, they want even harsher penalties for white-collar offenders. We should all be in this misery together.
So what do we do about the Ponzi schemers, the tax scammers, the money malefactors? William Aramony, the head of United Way of America, got seven years for, in effect, cheating on his expense account. The art dealer Mary Boone is a sixty-seven-year-old woman who is about to go to prison for two and a half years for fiddling her income tax, after having already made restitution of several million dollars to the I.R.S. The pressing issue is not whether white-collar criminals should be punished more or less than others; it is whether the practice of locking anyone up in a closed penitentiary for long periods is an effective way of punishing or preventing criminal behavior. Even if Noura Jackson was as guilty as Amy Weirich and the judge in her case believed she was, her exemplary behavior since her release—Bazelon reports that she was accepted to college, and plans to work in social-justice advocacy—makes it plain that keeping her locked up for much of her life was not a social necessity. Octavia Cartwright committed a violent and life-threatening assault. But—ninety-one years?
In most modern societies, these concerns have largely been eased by time and reform. Plea bargaining—which typically means forcing someone to accept a long sentence out of fear of an even longer one—is unknown in other liberal democracies. It is unlikely, in most Western European countries, that Octavia Cartwright would have been penalized anywhere near as severely. Indeed, even back in the nineteen-thirties the most famous patricide in French criminal history, Violette de Nozière, later the subject of a fine film by Claude Chabrol, was released after a dozen years in prison, and went on to raise a family. The level of recidivism seems unaffected by a more moderate penal regimen.
Ours remains a singularly punitive society, a society obsessed, right and left alike, with inflicting punishment on our preferred villains. Bazelon says that she
spoke to a number of former Shelby County prosecutors who told her that the reward structure of the office “fostered the outlook that ‘everyone is guilty all the time.’ ” Everyone is guilty all the time: this is surely the motto on our national currency. The right-wing desire to appease white fear by locking up black offenders, the desire that has built these penitentiaries and sent away for life women like Octavia Cartwright, is mirrored by the urge that the left feels to annihilate its own sanctioned offenders. The quality of mercy has never been more highly strained than it is in America today.
The acts of moral discipline necessary to show compassion for people we least care for are extremely hard to undertake, but without them our compassion is merely clan feeling. We must always test our moral propositions against their least sympathetic objects, and so we have to ask whether the incarceration of offenders we deplore makes sense. When the sixty-nine-year-old Paul Manafort was given a four-year sentence for, essentially, tax evasion and lying to loan officers, was the judge properly denounced for his “lenience”? (Manafort’s allotted prison time has since doubled.) Is it right that offenders be made to “show remorse,” while feeling none, in order to shave a year or two from a sentence? What’s gained by such ritual displays of abasement?
Perhaps the most radical and challenging of the new approaches to incarceration involves the move to cap all prison sentences at some designated limit. Pfaff, in his book, proposed a test program in which prisoners, including those convicted of violent crime, would, after serving some years, be released when they reached the age of forty; the anti-incarceration activist Marc Mauer has made a similar case with a different figure, arguing, on a Norwegian model, that all prison sentences be capped at twenty years. The evidence is overwhelming that, even with the most seemingly noxious criminals, age and time wear away danger: little violent crime is done by middle-aged people, and eliminating all hope of release is one of the crueler, if unfortunately not at all unusual, punishments we impose.
Yet these sensible policies become emotionally untenable, for different reasons, from one place to another. In parts of the South, the idea of releasing violent home invaders—particularly minority ones—after a “mere” twenty years, or at the age of forty, may be regarded as liberal madness. But blue states have their own taboos. In Manhattan, it isn’t easy to ask for compassion in cases of sexual victimization, or of high-living financial fraudsters. Bazelon creates empathy for Octavia Cartwright, who surely should not be in prison, away from friends and family and simple normal human contact for the rest of her life. But it would seem too much to ask that compassion arise at the imprisonment unto death of, say, Bernard Madoff, who ruined those who trusted him; to pose the question of whether it is really essential, or merely vindictive, to watch him die of old age behind bars. Through “hate crime” statutes and the like, we seek to express abhorrence for acts that should never have been countenanced, concern for victims who should never have been undervalued, but it is an impoverished moral imagination that can contemplate no other form of redress than locking someone in a cage for an ever longer time.
Justice without compassion is something other than civilized. We look back now in proper horror at the rituals of prison hangings, once so frequent in Britain and America both, without thinking that homicide is now acceptable. What was at stake was not the convict’s fate but ours. We have to want to humanize the treatment of those we think “belong” in prison with the same energy with which we agitate for those we don’t. Deincarcerating our society may, in the end, involve making harder, and more foundational, moral choices than we quite care to know. ♦
This article appears in the print edition of the April 15, 2019, issue, with the headline “Locked Up.”