{"id":20809,"date":"2019-04-08T22:44:19","date_gmt":"2019-04-09T05:44:19","guid":{"rendered":"http:\/\/amicuscuria.com\/wordpress\/?p=20809"},"modified":"2019-04-08T22:59:27","modified_gmt":"2019-04-09T05:59:27","slug":"who-belongs-in-prison-new-yorker-c","status":"publish","type":"post","link":"https:\/\/amicuscuria.com\/wordpress\/who-belongs-in-prison-new-yorker-c\/","title":{"rendered":"Who Belongs in Prison? New Yorker (c)"},"content":{"rendered":"\n\n

A truly just system must do more than protect the rights of the innocent; it must also respect the humanity of the guilty.<\/em><\/h2>\n\n\n\n\n
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<\/h2>\n\n\n\n\nNothing 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\u2014millions of men and women locked up for, cumulatively, millions of years\u2014is 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\u2014to side with the police and the prosecutors in every instance, to \u201cget tough on crime\u201d\u2014have become, at the very least, negotiable. We have gone from \u201cLock \u2019em up!\u201d to \u201cLock \u2019em up?\u201d to \u201cSet \u2019em loose!,\u201d all in a relatively short time.\n\n\n\nOne 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.\n\n\n\nThere 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\u2014some of them, by the standards of the rest of the world, properly described as politicians, elected to their office and sensitive to voters\u2019 needs, including a metric of success linked to putting people in jail\u2014we 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 \u201cLocked In<\/a>,\u201d inmates ended up behind bars \u201cby signing a piece of paper in a dingy conference room in a county office building.\u201d 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.\n\n\n\nNow the legal journalist and Times Magazine<\/em> staff writer Emily Bazelon, in her book \u201cCharged<\/a>\u201d (Random House), puts flesh and faces to Pfaff\u2019s statistical and largely abstract proposition. \u201cCharged,\u201d 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\u2014why bail is so hard to get and why it exists at all; why public defenders are often so inadequate\u2014in 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\u2019s 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\u2019s \u201cThe Bonfire of the Vanities<\/a>\u201d as a teen-ager\u2014not an obvious book to point someone on a path toward public service. (He was fascinated not by the deep cynicism of Wolfe\u2019s 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\u2014proof, again, that we find in books what we want to find in books.)\n\n\n\nYet, though Bazelon\u2019s 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\u2019t 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\u2019s out of all proportion to the offense\u2014there 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 \u201cmandatory minimum\u201d stipulated by New York\u2019s 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\u2014\u201cholding\u201d 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\u2019s most progressive mayor in decades, has been even\u00a0more\u00a0<\/em>rigorous than his predecessors in encouraging these mandatory-minimum gun-possession indictments.\n\n\n\nIt\u2019s 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\u2014indeed, she points out that in some jurisdictions in the city there\u2019s a healthy unspoken understanding that kids like Kevin won\u2019t<\/em> be charged under the law, using various wiggle-room maneuvers to get them out.\n\n\n\nA certain irony of this case is that our sense of justice here demands not less but more prosecutorial discretion\u2014more 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, \u201cPunishment Without Crime<\/a>\u201d (Basic), Alexandra Natapoff calls this process \u201cnet widening\u201d: it includes the attempts, which Bazelon tracks in Kevin\u2019s case, to move his offense out of the normal criminal courts and into a special \u201cdiversion\u201d program. This adds bureaucratic labyrinth to unjust arrest. \u201cEach of these reforms makes room for more people in the system,\u201d Natapoff, a law professor at U.C. Irvine, writes. Kevin\u2019s 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.\n\n\n\nThe central case in Bazelon\u2019s book was the subject of a Times Magazine<\/em>article<\/a> that she published in 2017, from which the book evidently grew. It\u2019s 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\u2014an outrageous violation of Fifth Amendment protections against self-incrimination.\n\n\n\nThe case was a strange one. Noura Jackson, then eighteen, claimed that, after a night of partying, she returned home and discovered her mother\u2019s bleeding body at around five o\u2019clock in the morning. Jennifer Jackson, it turned out, had been stabbed fifty times\u2014instantly marking her murder, to law enforcement, as a \u201ccrime of rage,\u201d 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 \u201cprofiling\u201d generalizations are empirically sound, but they are prevalent.\n\n\n\nAnd so suspicion fell on Noura, particularly after a relative maintained that Noura had quarrelled with her mother about the dispensation of her estranged father\u2019s estate. (In a stranger-than-cable-television detail, Noura\u2019s 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.)\n\n\n\nAll 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 \u201cCourt TV\u201d case, steadily sensationalized by the media.\n\n\n\nThe most damning piece of evidence was a 4 a.m.<\/em> visit that Noura made on the night of the murder to a Walgreens, where she bought hydrogen peroxide, bandages, and \u201cliquid skin,\u201d 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\n\n\n\nand 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\u2019s sister asked Noura where she was that night, and she answered, \u201cI don\u2019t know.\u201d (Noura tells Bazelon that her aunts had always been prejudiced against her because her father was Lebanese.) Bazelon further notes that none of Noura\u2019s 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\u2019s parents were linked by her father\u2019s alleged participation in a prostitution ring.\n\n\n\nEspecially difficult to explain is the evidence\u2014which Weirich referred to in a letter that she sent to the Times<\/em> in response to Bazelon\u2019s piece, and which the paper never printed\u2014of a phone call from inside the Jackson house to a close friend of Noura\u2019s at 12:59 a.m.<\/em>, presumably right around the time of the murder, followed, ten minutes later, by a call from Noura\u2019s 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\u2019t broken the rules.\n\n\n\nBut she did. There\u2019s no doubt that Noura Jackson became, at trial, the victim of prosecutorial misconduct. Noura had been counselled by her lawyer not to testify\u2014she was on antidepressants, and, anyway, defense attorneys are generally reluctant to allow their clients, however innocent, to be grilled by a skilled prosecutor\u2014and Weirich shamefully took advantage of Noura\u2019s silence to poison the minds of the jurors. \u201cJust tell us where you were,\u201d she shouted. \u201cThat\u2019s all we\u2019re asking, Noura!\u201d Weirich concealed from the defense a statement by a friend of Noura\u2019s 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\u2019s guilt, she was prepared to go to almost any length to convince the jury of what she believed to be true.\n\n\n\nThere\u2019s 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 \u201ctypical\u201d about the Manson murders or, for that matter, about the O. J. Simpson<\/a> 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\u2019s perhaps significant that, in the nineteen-sixties, questions of misconduct were usually tied to the behavior of the police\u2014this magazine ran a three-part piece<\/a>detailing police misconduct in the once famous \u201cCareer Girl Murders\u201d of 1963\u2014while these days we focus on the prosecutors, implicating the system\u2019s managers, not simply its laborers.\n\n\n\n\u201cCharged\u201d 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\u2019s innocence as a thing proven, her account of the long years of Noura\u2019s imprisonment\u2014her desperate search for normalcy, decency\u2014will 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\u2019s 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\u2019s walls is one of the more moving accounts in Bazelon\u2019s book.\n\n\n\nCartwright\u2019s 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\u2019t. Say, for the sake of argument, that she had<\/em> 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\u2014it might well have been a lifetime\u2014of despair and misery enforced by the state? Convinced of Noura\u2019s 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?\n\n\n\nIn this respect, again, Bazelon\u2019s specific case seems an odd one to make her point. What we seek from a sense of indignation about America\u2019s 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.\n\n\n\nMaking 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\u2019s book on misdemeanors makes us aware of how we lock up poor people for long periods for the tiniest of offenses; Erin Kelly\u2019s \u201cThe Limits of Blame<\/a>\u201d gives us a philosopher\u2019s take on the concept of criminal \u201cguilt,\u201d 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 \u201cPrisoners of Politics<\/a>,\u201d 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 \u201cUntil We Reckon<\/a>,\u201d offers a testament to an extralegal process called \u201crestorative justice.\u201d 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\u2014bad person, good person\u2014but 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.\n\n\n\nThe 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\u2019s foundations have poured millions into supporting anti-incarceration initiatives, and so, astonishingly, have the Koch brothers\u2014some libertarians really do like to see people at liberty, it seems.\n\n\n\nBut 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 \u201cguilt,\u201d 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. \u201cThe crime is what you did, it\u2019s not who you are\u201d is an aphorism of anti-incarceration activists, and this perspective enlivens almost all the reformist literature.\n\n\n\nAnd so the plethora of new books can sometimes seem to sit just outside the hardest issue. The hardest cases aren\u2019t 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\u2019t help solve it. It\u2019s 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\u2014indeed, there\u2019s 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.\n\n\n\nSo what do<\/em> 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\u2014Bazelon reports that she was accepted to college, and plans to work in social-justice advocacy\u2014makes 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\u2014ninety-one years?\n\n\n\nIn most modern societies, these concerns have largely been eased by time and reform. Plea bargaining\u2014which typically means forcing someone to accept a long sentence out of fear of an even longer one\u2014is 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 Nozi\u00e8re, 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.\n\n\n\nOurs remains a singularly punitive society, a society obsessed, right and left alike, with inflicting punishment on our preferred villains. Bazelon says that she\n\n\n\nspoke to a number of former Shelby County prosecutors who told her that the reward structure of the office \u201cfostered the outlook that \u2018everyone is guilty all the time.\u2019 \u201d Everyone is guilty all the time:<\/em> 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.\n\n\n\nThe 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 \u201clenience\u201d? (Manafort\u2019s allotted prison time has since doubled.) Is it right that offenders be made to \u201cshow remorse,\u201d while feeling none, in order to shave a year or two from a sentence? What\u2019s gained by such ritual displays of abasement?\n\n\n\nPerhaps the most radical and challenging of the new approaches to incarceration involves the move to cap all<\/em> 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.\n\n\n\nYet 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\u2014particularly minority ones\u2014after a \u201cmere\u201d 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\u2019t 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 \u201chate crime\u201d 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.\n\n\n\nJustice 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\u2019s fate but ours. We have to want to humanize the treatment of those we think \u201cbelong\u201d in prison with the same energy with which we agitate for those we don\u2019t. Deincarcerating our society may, in the end, involve making harder, and more foundational, moral choices than we quite care to know. ♦\n\n\n\nThis article appears in the print edition of the April 15, 2019<\/a>, issue, with the headline \u201cLocked Up.\u201d<\/em><\/a>\n\n\n\n\n