Larry Nassar and transformative justice

Larry Nassar–the now infamous gymnastics coach with literal hundreds of victims of sexual assault–was given a harsh sentencing hearing back in January. The judge’s commentary during the hearing resulted in some interesting responses, including the bizarre notion that an ordinary day in a punitive law system somehow constituted “transformative” justice. Survivors of sexual violence who are themselves prison abolitionists responded thusly:

Amid our society’s current cultural upheaval around sexual violence, Aquilina struck a chord with many survivors who want and need to believe that justice under this system is possible. By offering the mic to survivors, and by aiming violent, vindictive language at a widely loathed defendant, Aquilina has been rewarded with the status of instant icon. Unsurprisingly, she is also reportedly considering a run for the Michigan Supreme Court. The case launched numerous think pieces, including a misguided, misinformed praisesong entitled, “The Transformative Justice of Judge Aquilina,” by Sophie Gilbert.

Gilbert’s article highlights how this moment challenges those committed to transforming our carceral system — including people, like us, who are committed to justice for survivors of sexual assault and who also believe that prisons are the wrong answer to violence and should be abolished. We decry the system and advocate for change that is long overdue. Yet when that system ensnares people we loathe, we may feel a sense of satisfaction. When we see defendants as symbols of what we most fear, and that which we most greatly despise, we are confronted with a true test of our belief that no justice can be done under this system.

Yet like all tests of faith, this moment calls on us to recommit ourselves to true transformative justice. And to do that, we must remind ourselves what transformative justice is, and why it looks nothing like the civil death that Aquilina delivered last month.

Read more here.

-Shiv

Just because it’s normal, doesn’t mean it’s right

Philadelphia has had an interesting election regarding their District Attorney. Larry Krasner won the contest, but his career isn’t as a prosecutor–it’s as a defense attorney. Krasner’s platform highlighted the many ways in which the American justice system is abused and promised to end these practices. But what is bizarre is that the media is covering him like it’s a total surprise he’d gut dozens of state prosecution positions for their role in this abuse, despite him explicitly saying this was his agenda.

The Inquirer is not alone. At The Philadelphia Citizen, co-Executive Director Larry Platt compared an inexperienced Krasner to Trump and Oprah, lampooning his “amateurish first week,” pointing to the “freaked out Assistant District Attorneys” blowing up his phone. “It had,” he hyperbolically suggested, “the feel of an authoritarian (Trump-like?) purge.” But the Trump comparisons will fall flat. Most Philadelphians hate Trump, and they voted for Krasner in a landslide. And though Philadelphians voted against typical prosecutorial expertise in carrying out systematic justice, Krasner has considerable experience in the Philadelphia criminal justice system as a defense attorney. What’s more, Trump is a monstrous bigot fomenting a smokescreen of fear and hate to advance a war against poor people. By contrast, Krasner has pledged to do his part to fight back on the other side.

The Inquirer’s coverage is not just anti-Krasner; it is bad reporting, featuring fundamental oversights that shouldn’t appear in the city’s paper of record. First, the coverage is premised on the belief that Krasner was acting in bad faith — that he jettisoned people like Notaristefano for no good reason — and worse yet, that he has no real interest in securing justice. It didn’t seem to occur to the paper that Krasner might have a serious problem with the way that Notaristefano was prosecuting cases or about his overall track record.

Second, The Inquirer seems dumbstruck that Krasner’s own personal impression of prosecutors played a role in their ouster. But Krasner has spent decades in the court system, giving him a front row seat to how prosecutors play dirty by, say, turning a blind eye to brazenly lying cops or unconstitutionally hiding evidence from the defense. Why shouldn’t this sort of information, combined with what he has learned from others in the legal system, inform his personnel decisions?

Third, the coverage betrays a basic misreading of what district attorneys do. The presumption at work is that the district attorney’s office is a technocratic one rather than a political force that wields incredible discretionary power over people’s lives and liberty. Consider that no one would ever fault a president, governor or mayor for excusing functionaries who were hostile to their mission, and installing a new team. The technocratic conception of the district attorney’s office is a smokescreen obscuring the regular operation of mass incarceration: seeking maximum sentences for huge numbers of people at whatever cost, however ethically repugnant or legally dubious. That the status quo was normal did not make it right.

Read more here.

-Shiv

 

Justice for an abolitionist

I was given a highly sanitized version of justice in my upbringing–cops catch “bad guys,” and only the “guilty” are convicted for prison–and sadly despite the mounting evidence that neither of these pillars is true, it’s still a relatively common response to the law system. When I finally found myself in the crosshairs of behaviour that is arguably criminal as defined by the law system I am bound to, I did not relish the notion of my abuser being jailed. There was no inherent satisfaction to me in that outcome. She would either be hurt by someone else (which is not what I want) or she would hurt someone else who was imprisoned (which I don’t consider acceptable either). So what does justice look like for people like us?

Punishment and revenge will not heal the harm that has been done to me. It will not take away the pain, nor will it make me feel better about myself when I look in the mirror. But putting forward a system that advocates for a radical shift in our culture, in our way of surviving and handling these atrocities and collectively preventing them, will.

I don’t want temporary healing. I don’t want a fleeting safety.

I genuinely don’t blame anyone for wanting those who have harmed and violated them or someone they love in a jail cell or even dead. That’s what we’ve been fed and told is the only appropriate way to deal with perpetrators of violence, enablers of patriarchy, and even non-violent forms of deviance. But I can tell you with absolute certainty that prisons do not, will not, and cannot protect us. Prisons have never made me feel safe.

My violator(s) did not spend a minute in a cell for what they did to me. I never came forward. I don’t regret that, but I do regret not making it known how they violated me. I regret going through the process of healing alone, which is something I’m still working through as I type this.

If I could go back in time and do things differently, I still to this day would not put my violator(s) in a jail cell. But what I would have wanted was a community, or even a single person, to show me a love that was sincere and much more nuanced than simply regurgitating the hatred I should feel toward my violator(s) and wanting them dead. A community that works toward protection and prevention, where survivors don’t feel it’s their sole responsibility to survive, heal, and search for a nearly non-existent justice for not only themselves but others who have been harmed.

Read more by Joshua Briond here.

-Shiv

“That’s a white man mourning the loss of his slaves”

My colleague Crip Dyke has a wonderful way with words:

While The Advocate includes all this in its coverage, what is more interesting is what The Advocate leaves out: Prator is unhappy with the new law and its somewhat-earlier release of people who carry around the leaves of plants that grow like weeds just about anywhere in the US because it’s the best prisoners that will be released early, and he counts on being able to force those prisoners to work:

I don’t want state prisons. They are a necessary evil to keep a few, or to keep some [people] out there. And that’s the ones that you can work, that’s the ones that can pick up trash, the work release programs — but guess what? Those are the ones that they’re releasing! In addition to the [cough]. In addition to the bad ones [waves some manilla folders, presumably holding details of people like the current prisoner who has been arrested 52 times] – and I’m calling these bad – In addition to them, they’re releasing some good ones that we use every day to, to wash cars, to change the oil in our cars, to cook in the kitchen, to do all that where we save money … well, they’re going to let them out!*3

That’s right. No efficiencies of private enterprise, please. The Sheriffs have a good thing going where they can force people to work, and the better you are at doing that work, the more they want to keep you locked down. If you’re uncooperative, you’re a bad prisoner and need to be held longer. If you’re cooperative? Well, then you’re a good worker, and you need to be held longer.

This isn’t a law enforcement official concerned about good law enforcement policy. This is a fucking white man mourning the loss of his slaves.

Crip Dyke is a legal insider of some variety (I don’t remember her exact capacity, but she can get much more detailed on analyzing law and law enforcement). Her series “Fascist Policing” demonstrates how policies and enforcement that are perfectly legal in a supposedly robust human rights country are nonetheless deeply unethical and outrageously unjust.

You should read more here. Caine picked up on this too.

Law enforcement are the shock troops in class warfare. Prator’s only exceptional because he’s (implicitly) admitting he’s at war to begin with.

-Shiv

I’m sure the frozen peachers are right around the corner

I’m going to keep dredging this up because every time there is a development in this case, I am positively floored by how draconian and authoritarian the prosecution is.

The case against the J20 protesters–over 200 people who were kettled and mass arrested because they wore the same colours as someone who broke a window–has been repeatedly described as “unprecedented.” For starters, there is the simultaneous charge of both conspiracy to commit rioting and having committed the riot itself. Instead of evidence of intent factoring into sentencing provisions, the prosecution, by pressing both, is trying to bilk the defendants for a maximum sentence of 20 years instead of 10.

This is on top of the evidence for the third felony charge–inciting a riot: “Anti-capitalist slogans.” Also a 10 year max sentence. The indictment clearly describes that there were half a dozen defendants who are alleged to have actually carried out property destruction, so it is unclear how the half dozen could be accused of inciting the riot, or the 194 alleged inciters of committing it.

Yep, those freeze peachers will be here any second now, I’m positive.

Lastly, the five counts of property destruction (5 years max a piece) clearly name which defendants they accuse of directly perpetrating the action, and yet the prosecution has gone ahead to press all five charges to all 200 odd defendants. This includes a defendant who didn’t actually participate in the protest, but merely organized it.

And they’re being tried collectively. (emphasis added)

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Anti-fascism declared terrorist activity

Recently revealed by Politico, “antifa”–a reminder that this is simply “anti-fascist” truncated–was declared a “domestic terrorist group” in April of 2016. Analysts credit Trump’s violent rhetoric for inflaming “antifa” activities.

Media outlets, as ever, refuse to acknowledge that white supremacist organization is on the spectrum of violence, and the Department of Homeland Security apparently deems “antifas” (I keep scare-quoting because anyone against fascism is ostensibly “antifa”) the “primary instigators.”

Just to make things clear: So-called antifa organizations are not in a hierarchy, have no formal structure, and largely improvise their planning. They assemble and disband constantly. The groups are so loosely defined that the definition of an anti-fascist can be expanded at will for anyone that’s inconvenient. In fact if any protest gets rowdy the FBI could use evidence of organization as evidence of “anti-fascist membership.” This is hardly implausible–Canada tried the same with the G20 arrests in 2015, and the American federal government is doing it with J20 right now.

Enjoy your FBI dossier.

Conference organizers: Just assume I’ll be denied at the border.

I’m sure all those frozen peachers are right around the corner. Any second now.

-Shiv

 

 

Bad survivor

Whenever “call out culture” is critiqued I typically approach the piece with skepticism–it’s a term so loosely used to the point of being useless at this point, and I just want people to define their terms precisely. Regardless of what we actually call it, this piece is about non-state methods of community policing, and has some valuable observations on how messy the process can be:

Content Notice: Abuse, threats of violence.

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Why do you hate prisoners?

Mike Epifani has a compelling piece on antipathy towards prisoners:

Over 6.74 million people are supervised by US adult correctional systems, and tens of millions of people have a criminal record. And to many, their rights don’t matter because “they must have done something wrong.”

Let’s start with the fact that “we spend billions to keep 480,000 people locked in cages without a conviction.” And that abhorrent criminal justice system practice is the tip of the iceberg — this is getting worse, not better. Jeff Sessions just recently reinstated the practice of allowing law enforcement to seize personal property without a conviction or even an indictment.

Did you know that around 95% of convictions are obtained through guilty pleas, and, more specifically, through plea bargaining? That means that only 5% of prisoners receive a fair trial. Most of us have seen it on television: the prosecutor comes in, says that if they really want to take it to trial, they’ll push for the maximum sentencing, but if they plead guilty, they’ll be charged with a lesser crime or receive a shorter sentence. Given the fact that many people who are arrested do not have the resources (time and money) to feel confident in their legal counsel’s chances in front of a jury, they’ll go with the guilty plea just to be on the safer side, guilty or not.

So, if the punishment really fits the crime, what is the justification behind making a deal to release them sooner?
Or does the punishment not fit the crime?
Or are they admitting that, in large part, prisons fail to rehabilitate?
Or is there often not enough evidence to lock up a cash cow (inmate), so intimidation tactics are required?

If you argue that the prosecution wouldn’t even bother proceeding with the process if the evidence wasn’t there to make a conviction…okay…but 95%? Only 5% of people convicted of a crime enact their 6th Amendment right to a trial in front of a jury of their peers? That seems right to you? Well, it’s not right. In fact, prosecutorial strategies when someone decides to take it to trial can be downright abhorrent, including blatantly adding additional charges.

Read more here.

-Shiv

Behind the walls of America’s prisons

Heather Ann Thompson has completed a comprehensive review of policies and case law that affect the American incarceral system, and it’s a disturbing read:

There is, in fact, a long history of the public being kept away from prisons so that corrections officials could run them as they wished. For much of the 19th and into the 20th century, state politicians’ deeply ingrained fear of federal encroachment on their power more generally translated into the so-called “hands-off doctrine” when it came to how they ran their prisons. Prison authorities, it was understood, had the right to do what they wanted to those in their charge.

Of course prisoners routinely tried to bring attention to the abuses that happened to them. But time and again, and most notably in the infamous 1871 case Ruffin v. Commonwealth, their bid to be treated as human beings was formally denied. In fact, according to the court in this case, prisoners were “slaves of the state.”

In the 1960s and 1970s, though, in response to escalating protests in penal facilities and in cities across the country, prisoners finally gained some rights. In turn, the public began to learn a bit more about what was happening to them behind bars.

It was, for example, deeply significant when the Warren Court opined in a 1974 case, Wolff v. McDonnell, that

“a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.”

However, at the moment that more light was being shone on prison conditions because of specific judicial rulings, it was also clear that serious limitations on the public’s access to these institutions would remain and, overtime, actually increase.

In 1974, the court ruled in Pell v. Procunier that prisoners’ First Amendment rights were in fact limited. In this case the court held that journalists, the people who might hear prisoner accounts of abuse and share them with the public, “have no constitutional right of access to prisons or their inmates beyond that afforded to the general public.” As Ted Kennedy noted passionately before his colleagues in the Senate, this decision was alarming since, as he pointed out, “the public cannot regularly tour the prisons and interview inmates.”

Another significant blow to the public’s access came in 1987 when a decision was rendered in the case Turner v. Safley. The court ruled that prisoners’ rights to speak to the media existed only to the extent that prison authorities didn’t have a reasonable justification for restricting those rights. And the lid on access lowered even farther in the 2003 case Overton v. Bazzetta. The court ruled, in short, that if prison administrators wished to bar visitors to prison, their desires trumped other constitutional considerations such as the First Amendment rights of prisoners.

The court even found that prison officials could prevent visits between prisoners and their kids if the restrictions on visitation were related to “valid interests in maintaining internal security.”

Read more here.

-Shiv

The most pressing issue of contemporary Canadian politics

Duels are being re-legalized.

The Liberal Bill C-51* revisits anachronistic, centuries old laws scattered about the Criminal Code, which includes oddities like pretending to practice witchcraft (actual witchcraft was presumably permitted?), blasphemy (fuck the Pope!), falsely claiming a Royal Warrant and several other oddball-to-modern-standards laws.

More seriously, the Code is being cleaned up in a few ways:

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