A Forest of Poisonous Trees: The US Criminal (In)Justice System


April 13, 2013 | Kevin Zeese and Margaret Flowers |  Truthout

search There is a doctrine in the law developed in 1939 by Justice Felix Frankfurter known as the Fruit of the Poisonous Tree. The thrust is that courts do not allow illegally obtained evidence to be used in a criminal prosecution. This fruit of the poisonous tree cannot be allowed in court because it pollutes the justice system and encourages illegal behavior by police.

In our recent interview with attorney King Downing, who has worked on all of the issues discussed in this article, he said: “This is not just one bad apple, but a rotten tree.” Actually the US criminal justice system has become a rotten forest. No matter where you look, you see poison: police-citizen interactions which include racial profiling, stop and frisk, targeting of Arabs and Muslims, and killings of unarmed citizens, mass arrests, mass incarceration and mistreatment of inmates, especially the widespread use of solitary confinement. The indefinite detention without trial of prisoners at Guantanamo, where a mass hunger strike is underway, exemplifies many of the worst aspects of the injustice system in the United States.

After decades of escalation beginning with Nixon’s war on drugs, followed by the Reagan-era crack scare, Clinton’s massive expansion of police on the street and this century’s war on terror, the US criminal justice system has transformed into a tool of the national security state that pits citizens against government in everyday encounters.

As is the case for all of the crises that we face, there are more humane and effective ways to create real security. These solutions are being ignored because the security state is a powerful tool for government control and is a profit-producing Wall Street industry. Without intervention, we can expect the security state to encroach further into our lives and society. However, grassroots groups and inmates are taking action to increase awareness and detoxify the poisoned system.

Police-Citizen Encounters: A Security State Run Amok

Police-citizen encounters primarily involving people of color are increasing in number and severity. There are many examples of police killing citizens, over 400 each year nationwide. Few of these cases are ever independently investigated. To illustrate the injustice, we will describe two recent cases involving teenagers Kimani Gray and Alan Blueford.

On March 9, 16-year-old Kimani “Kiki” Gray was shot in the back and killed by two undercover police. Kiki had just left a baby shower and was not far from his home in Brooklyn’s East Flatbush neighborhood when an unmarked car approached him and his friends. Police claim that Kiki pointed a .38 caliber revolver at them, but eyewitnesses report that Gray was not armed at all. The police fired 11 shots in total, three of which hit the teenager in the back.

Since the killing, there have been ongoing protests in Brooklyn to demand an independent investigation. Even without an investigation, Mayor Bloomberg has already stated that the killing was justified.

Last May, high school senior Alan Blueford had just attended a sporting event in Oakland. He called his parents to say he would be home soon and was waiting outside with two friends for a ride. An unmarked car pulled up with its lights off. Alan ran, possibly thinking it was a gang. Oakland Police Officer Miguel Masso chased the 18-year- old, shooting Alan twice in the back and side, killing him; as well as shooting himself in the foot.

Police claimed Alan had a weapon, but over a dozen witnesses said he didn’t. The family and community have been protesting, calling for Masso to be fired and prosecuted, an end to stop-and-frisk and racial profiling and an independent investigation into Alan’s case and other police killings.

These cases stem from racially prejudiced police policies which used to be known as racial profiling but are now commonly referred to by the more neutral term stop and frisk by police to avoid being identified as racist. Racial profiling has become especially notorious in New York City, where 5 million people have been subjected to abusive searches over the last decade, mostly young African-Americans and Latinos.

Police justify stop and frisk by saying that it is used in high crime areas. Downing points out that the number of people being stopped is much higher than local crime rates would justify and that stop and frisk also occurs in low-crime, mostly white areas when people of color are there.

The stop-and-frisk program has been targeted by thousands of protesters from Occupy and other community groups. Twenty were arrested in civil resistance protests and in a circus of a trial, were found not guilty of the most serious charges.

In addition, a class action was filed against the NYPD over stop and frisk. This trial,Floyd, et al. v. City of New York, et al. has so far featured revelations by police whistleblowers who oppose the practice and have testified that they were directed to use the searches aggressively and to target young black men aged 14 to 21:

Officer Adhyl Polanco testified that supervisors pressured officers with quotas for “stop-and-frisk” searches and arrests. Polanco secretly recorded this on audiotape. On the tape, senior officers order officers to generate arrest quotas of “20 and 1” which means 20 summonses and one arrest each month. Polanco also testified that in 2009, he was asked more than 20 times to fill out a stop-and-frisk form attesting to an incident he did not observe.

Officer Pedro Serrano taped conversations he had with his commanding officer, Deputy Inspector Christopher McCormack, who said: “I told you at roll call, and I have no problem [to] tell you this, [you should stop and frisk] male blacks 14 to 21.”Serrano taped McCormick because he had gotten poor performance reviews for failing to meet what he claimed was the monthly quota of 20 summonses and five stop-and-frisks.

Brooklyn police officer Adrian Schoolcraft, testified at the trial that he was ordered to make more stops, sharing a tape he made in which another commanding officer, Lt. Jean Delafuente, says at roll call: “You’re working in Bed-Stuy, where everyone’s probably got a warrant.”

Another officer, Brian Dennis, testified that he detained a 13-year-old boy and taunted him by telling the handcuffed child to stop “crying like a little girl.” The young boy was brought to the police station and his father, a retired police officer, had to come and get him. The youth was not charged with any crime.

These “walking while black” incidents occur hundreds of thousands of times annually in New York City and destroy the fabric of police-community relations, humiliate citizens and create an adversarial relationship that poisons the community. Of the millions stopped and searched, nearly nine out of ten have been released without an arrest or summons. About 86 percent of those stopped have been black or Latino. In the precinct where Kimani Gray was killed, nearly 94 percent of the encounters result in no charges.

The targeting of blacks and Latinos is widespread, but since 9/11, a new target, Arabs and Muslims, have been under attack. In 2011, the Associated Press revealed that the CIA was working with the NYPD in targeting Muslims and Arabs, monitoring their businesses and religious institutions and mapping their communities. Law enforcement and CIA would seek out informants – taxi drivers with unpaid tickets, individuals with immigration status problems – and turn them into spies in their own communities.

And, of course, there are now revelations that the Department of Homeland Securityand the FBI worked with police to infiltrate, spy upon and set up protesters involved in the Occupy movement. These COINTELPRO-like programs have been the norm against political movements for the last 100 years.

Mass Incarceration: Extreme, Expensive and Exploitative

The poison fruit of the massive security state apparatus in the United States is mass incarceration. The United States, with 5 percent of the world’s population, has 25 percent of the world’s prisoners, meaning one out of four incarcerated people are in the “land of the free.” According to the World Prison Population list, the United States has the highest prison population rate in the world, 743 per 100,000 of the national population. The next closest is Rwanda at 595. More than half the countries and territories in the world (54 percent) have rates below 150.

Incarceration is only part of the criminal justice supervision system. When probation and parole are included, 7.3 million Americans are “in the system”; that is, 1 out of 34 Americans is either incarcerated, on probation or on parole. The rate of African-Americans under supervision (prison, probation or parole) is 1 in 11.

This massive increase in incarceration has occurred because of extreme sentencing schemes, especially mandatory sentencing for drug cases. For example, in the federal prison system in 1980, there were 4,900 federal prisoners held for a drug conviction, but by 2009, that number had ballooned to 95,205.

Downing relates this increase to the private for-profit prison industry. The American Legislative Executive Council (ALEC) introduced the concepts of zero tolerance and “three strikes you’re out” decades ago through willing politicians. ALEC predicted that as the number of prisoners increased, the public prisons would become overwhelmed and this would open the door to private, for-profit prisons.

Corrections Corporation of America (CCA), the largest prison corporation and a member of ALEC, has negotiated contracts with states that guarantee 90 percent occupancy rates for the length of the contract, some of which are 20 to 30 years. ALEC has been behind laws that allow prison labor at private prisons, paying inmates as little as 17 cents per hour. The demand for prison labor by corporations such as IBM, AT&T and 3M creates a greater incentive to incarcerate. CCA is also known for human rights violations, cutting services to save money and increase profits. On March 27, hundreds of inmates at the Cibola County Correctional Center in New Mexico staged a 12-hour protest over prison conditions. Last year, prisoners in Mississippi violently rioted over lack of health care and abusive conditions, as did inmates at another CCA prison in Texas in 2010. A September 2012 report foundprivate prisons to be unsafe, unnecessary and expensive.

Indeed, the mass incarceration system is very expensive. According to the federal Bureau of Justice Statistics, in 2010, state corrections institutions spent $37.3 billion to imprison a total of 1,316,858 inmates. BJS estimates that the mean expenditures per person were $28,323. The federal government fiscal year 2013 budget for the Bureau of Prisons totals $6.9 billion. Imagine the result if those dollars were invested in communities instead.

When incarceration is looked at through a racial prism, the racially disproportionate impact is striking. According to the Bureau of Justice Statistics, “In 2011, blacks and Hispanics were imprisoned at higher rates than whites in all age groups for both male and female inmates. Among prisoners ages 18 to 19, black males were imprisoned at more than 9 times the rate of white males.”

The Stop Mass Incarceration Network, which is building a movement to end mass incarceration and police brutality, describes the circular, spiraling nature of this injustice – how it destroys families and communities and creates more crime and incarceration: “This racially targeted mass incarceration results from whole generations of inner city youth being criminalized; of poor communities being saddled with substandard schools that fail to educate our youth; and from the disappearance of employment opportunities in inner cities and rural areas…. On top of all this, after people serve their sentences, our society stamps them with a badge of dishonor and shame, discriminating against them when they seek employment, denying them access to public housing and government loans and even the right to vote!”

As public programs are defunded and privatized, the social and economic destruction of communities tears them apart and fuels the private prison industry. The school-to-prison pipeline is growing as students no longer drop out but are forced out. Since the 1970s, the number of students who are suspended has doubled. Not surprisingly, the majority are black. And police are now called to schools to handle routine behavioral issues in which they have little or no training. There are stories of children as young as 5, 6, 7 and 8 years old being handcuffed by police for normal childhood behavior.

The disenfranchisement of prisoners is regarded by many to be a new way to deny blacks the right to vote after passage of the 1965 Voting Rights Act. Currently, 13 percent of black men have lost the right to vote because they have been convicted as felons. Without the vote, people lose the right to have a voice in the policies that affect them.

Solitary Confinement: Widespread, Abusive and Counterproductive

According to Jean Casella of Solitary Watch, on any single day, the United States holds 80,000 to 100,000 people in solitary confinement. Worldwide, fewer than a dozen countries have as many people in prison as the United States has in solitary confinement.

Solitary confinement goes by many names, including administrative segregation, disciplinary confinement, security housing and restricted housing, but it normally consists of 22 to 24 hours of lockdown in a small cell without human contact. It is now used routinely rather than being reserved for extreme situations, a practice which runs counter to international law. Terms in solitary confinement often extend to months, years or decades, even though it is known that more than 15 days in isolation causes psychological damage. And keeping someone in solitary is expensive, costing $70,000 to $75,000 annually, or three times as much as non-solitary incarceration.

The United States has imposed solitary confinement for more than 200 years. Almost immediately, the ineffectiveness and negative effects of solitary were evident. In 1890, the US Supreme Court wrote in, In re Medley, 134 U.S. 160, 168 (1890): “A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane, others, still, committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”

However, except for a few state laws protecting the mentally ill, there are no laws in the United States prohibiting solitary confinement and courts have not taken action to prohibit it. Solitary Watch reports on many who are in isolation, such as William Blake, who is considered to be an escape risk and has been in solitary, administrative detention for 25 years. How does he handle it? “Dreaming is what helps him get through the long, colorless nights in the Security Housing Unit. “Sometimes I watch the roaches and I envy them,” he writes:

In my mind I have fantasized that I was a cockroach and I maneuver all through the halls of the prison, walk under the locked gates and stay close to the walls to avoid being stepped on by a CO who’s walking through the prison. Then I get outside through some crack or under some door, walk through the grass that looks like tall trees to me, my being a roach and small, then I’m up and over the wall and out. Once I make it, I pop myself back to being human and I walk off into the night, free again and not even caring if I die that same night, just as long as I can see some trees and feel a breeze, and know for an hour or two that I was free again, that I lived to see the outside of prison before my time in this world would be over.

Solitary confinement is one way to silence those who are politically active. Mother Jones reports on a case of two men, Black Panther members, who have been in solitary confinement for 40 years. They were convicted for killing a prison guard. Herman Wallace and Albert Woodfox, who as of last year were 70 and 65 years old respectively, spend 23 hours a day in cells measuring 6 feet by 9 feet. They are allowed one hour a day to take a shower or stroll along the cellblock. Three days a week, they may use that hour to exercise alone in a fenced yard.

Their defense lawyers and the prison psychologist describe severe mental anguish, anxiety, depression, memory loss and other symptoms. Bruce Cain, the warden of the Louisiana Penitentiary at Angola, said in a deposition that he would keep them in solitary no matter what they did because they still “practice Black Pantherism” and would “organize young new inmates.”

Solitary confinement has severe psychological consequences and is considered torture in many countries. One study of suicides related to solitary quoted an inmate: “I started hearing voices and losing control of my own thoughts … I really started noticing more when I started being in the hole … It just started getting worse for me.” Another study found two out of three suicides were among those held in solitary. Those held in solitary more frequently engage in self-mutilation, throw feces against the wall or take other actions to get attention and gain some human interaction.

While solitary confinement is difficult for healthy people, it has particularly severe consequences for those with mental illness. And roughly 20 percent of inmates suffer from serious mental illness. According to research compiled by the American Psychiatric Association, placement in settings of “extreme isolation” is inappropriate for these patients and will cause their condition to deteriorate. The result is a worsening cycle in which inmates with mental illness are placed in solitary, their condition is exacerbated and they become agitated, which results in an extended term in solitary.

Casella of Solitary Watch says “solitary confinement is the most important domestic human rights issue that most people have never heard of.” Those with mental illness and juveniles are more likely to be placed in solitary. Children as young as 14 who entered the adult justice system are placed in solitary for their own protection, but they are subjected to the same conditions as others in solitary, including complete sensory deprivation. It is suspected that even younger children are placed in solitary in juvenile detention centers. Such treatment of youth is completely unheard of in other democratic countries.

The US prison system needs to recognize that solitary confinement does more harm than good and should be banned. Solitary Watch reports: “In 2006, the Commission on Safety and Abuse in America’s Prisons, following a yearlong investigation, called for dramatic reductions and reforms on the practice of solitary confinement, noting the high recidivism rate and the viability of alternatives to solitary confinement.” They viewed solitary as actually being “counter-productive.” Their recommendations were to protect mentally ill prisoners, make sure that prisoners have “regular and meaningful human contact,” only use solitary as “a last resort” and to “stop releasing people directly from segregation to the streets.”

Solitary Watch summarized the international view: “European bodies have taken a more progressive view on solitary confinement, allowing it only after a medical examination certifies the prisoner fit to sustain the isolation and with daily monitoring of the prisoner’s psychological state.” In fact, the Convention Against Torture, to which the United States is a party, recommends that the use of solitary confinement be abolished.

How to bring about this change? It begins with education of the public that solitary confinement is overused, amounts to torture and is counterproductive. Change will happen when the public speaks out and takes action on behalf of prisoners. This is what ended the pretrial solitary confinement of WikiLeaks whistleblower Bradley Manning.

Prisoners have also taken action to improve their treatment. One famous effort wasthe Pelican Bay Prison hunger strike in 2011. On July 1, 2011, 6,600 prisoners began a hunger strike against solitary. One inmate, Todd Ashker, explained why they went on a strike: “We believe our only option of ever trying to make some kind of positive change here is through this peaceful hunger strike … there is a core group of us who are committed to taking this all the way to the death if necessary.” Director of Communications for Correctional Health Services Nancy Kincaid responded, “They have the right to choose to die of starvation if they wish.” Throughout the strike, the media was kept away from the prisoners. The prisoners have not won their demand and another strike began this month.

Guantanamo Bay: Hunger Strike at the Death Camp

As we write this article, Guantanamo Bay prisoners have been on a hunger strike for seven weeks and national solidarity actions in support of the prisoners are taking place. There continue to be 166 people held in long-term detention without trial in the Guantanamo Bay prison. Of those, 86 were cleared for release three years ago because there is no evidence that they committed any crime and they are not a threat to the United States, but they remain incarcerated with no plans for release. Another 46 are stuck in limbo because they were “too dangerous to transfer but not feasible for prosecution.” Only six prisoners have had any charges filed against them.

Read the entire article on Truth-Out.

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