Just like that, America voted for “Change” yet again. Those of us working in the social justice arena, working on our own form of change, are all checking pulses of the people around us, wondering “What does this mean?” The following are some initial thoughts, as someone who has confronted the criminal justice system during the Clinton, Bush, Obama, (and soon-to-be) Trump eras.
The Politics of Outsiderism
People get weary of a leader, and surely Americans have been blaming presidents for the weather ever since George Washington. The political change we just witnessed is, in many ways, not out of the norm. Reagan, Clinton, W., Obama, and Trump all ran as “outsiders” who will change the way we do business in Washington. All of them tapped into the present cultural discord. Even a president’s son managed to portray himself as an Outsider businessman from Texas. Only once in modern electoral history has a political party been able to stay in power beyond an 8-year presidency, and that was by elevating Vice President Bush, against a politician with very uncharismatic Dukakis- and it didn’t last long.
Just like that, it only took 25% of the voting age population to replace the images of their frustrations: Democrats, politicians, and a Black man. Eight years ago, people danced in the streets at the final overthrow of the American leader in the global power grab known as the War on Terror. Not everybody did, of course. But for those who danced, and who also rejoiced in the ultimate symbolism of a Black power trajectory: those people struggled to see any Bush policy that was reversed. Foreign occupations, extraordinary rendition, drone assassinations, domestic surveillance, deportations, the federal drug war, economic policy… these things were actually the status quo.
The Presidency and Criminal Justice Reform
Many Americans forget (or don’t know) that the police, prosecutors, judges, prisons, and laws controlling them are overwhelmingly local. There are infusions of federal money, such as when the Clinton Administration funded police officers in schools, and state prisons that agreed to reduce parole, but ultimately the federal government are followers rather than leaders. They follow the culture and the demands of the amplified people, and react to the media imagery (factual or not) and demagogues who fill the ears, hearts and minds of America. So does the Supreme Court.
When the Supreme Court is mentioned, it is generally as though they only made three rulings ever: Roe v. Wade, Obergefell v. Hodges (gay marriage) and Citizens United (a campaign finance ruling that 99% of Americans never heard of until the commentary afterwards). All of these laws are the status quo, as are many cases that set the floor for police powers to search, arrest and kill. Cases that control prosecutors hiding evidence (Brady) or the right to an attorney (Gideon) that is effective (Strickland) were all flimsy protections at best- yet massive improvements over the previous status quo. Are these issues also in jeopardy each time an overtly fascist President comes to power and may nominate someone who might rip up the principles of equal protection and due process? Perhaps, but Court nominees have proven to be a little harder to predict than advertised, and the status quo holds a lot of weight.
The Trump Administration will likely attempt to eliminate many of the social welfare programs that help keep people from desperately relying on criminal activity to survive. Money “saved” from affordable housing, for example, could then be shifted to prison subsidies (another form of a housing program). This will put him in a bind, however, as the majority of people receiving such support are poor and White. Of course, governments have historically done a masterful job of hurting that demographic and blaming Black and Latino people for it, and in this scenario the paying of poor White people in rural communities to cage the “scary” people of Color from the cities was a huge card to play. Sometimes, however, when you have already seen the movie, know all the dialogue, and know how it ends, you can disrupt that play from the beginning. This was the Clinton strategy. And now all the prisons are built, urban communities are gutted and occupied, and states are paying the bill on both ends. Local Republicans and Democrats have been increasingly seeing the light for about the past 12 years.
The Culture is the Key
Just like that, a wild and violent minority of terrorizers came out of the woodwork, feeling empowered to shout racist epithets to strangers, openly march as racist hate groups, and tear hijabs off of heads. We are indeed at a crossroads. Since the days of slavery and Native American genocide, this country has never elected a national leader who so easily incites violence and so blatantly disrespects the First Amendment. This wave of hate may in fact punch its way out. Fortunately, there is no impending Patriot Act and no part of America that needs invasion. When 9/11 happened, good people were so sucked into the “Us against Them” narrative that they didn’t even pause to question who “them” was. This indicates the fickleness of the masses, or the mob, or the crowd (depending on which leader you are quoting).
Trump will be calling police departments “fantastic” until he is blue in the face. No matter the evidence, he will be the Apologizer-in-Chief and possibly never throwing a single officer under the bus for violating someone’s rights. He will likely say things about how we are too soft, the laws are too weak, and we need to protect our police… all the same things we have heard from him. His entire platform of nationalism depends on the majority support of the two overwhelmingly White armed institutions: police departments and the military.
But will local people be unable to reign in and check the newly-emboldened racists who exist within these institutions? Will local police and prosecutors stand down in the face of a lynching (or similar acts)- as so many did for centuries? It is hard to imagine, particularly after many such District Attorneys were unelected in recent years. In many ways, the law has bent towards equitable justice under the weight of a movement. The era of social media has exposed new things to some people, but it is like suddenly seeing a 300 pound person and thinking they’re overweight- you might not know that person was 500 pounds last year.
As a man who has benefitted so much from foreign and immigrant labor, including his own wife, the prime battleground for racist policies will be on immigration. Families will be broken up, particularly if they are non-White. Racist militias will feel empowered, but may lose power if Trump sends massive federal troops in their stead. Trump also understands how corporations and the wealthy often exploit immigrants in ways they could not with Americans… and yet he will need to build some sort of “wall,” and need Mexico to make some sort of kickback. The double-speak and double-deal should be expected on a regular basis, as this is not unique to Trump. Obama needed to close Guantanamo and pull out of Afghanistan… and people are still waiting on that.
The pitbull that helped propel Trump to power won’t be so easy as a domesticated lap dog. The capitalists and materialists (whether Republicans, Independents, Democrats, and non-voters) are going to want the tension to go away so they can focus on increasing the comforts of their lives and families. Trump will have plenty of pressure to bring peace, and it will not all come from the social justice Movement. Perhaps only a small percentage of that pressure will be from us.
Why Be Partisan?
I realized long ago that states with all Democrats, and states with all Republicans, have the same inequitable criminal justice system that neglects children and adults until they desperately take survival actions. They have the same ruthless penalties for those who lack resources to explain, and those for whom the System employees have no compassion. Some states, and some municipalities, do things a little more or less humanely than the other, but the structures are the same. Neither party was ever promising an end to this cycle of neglect, desperation, punishment, and neglect.
Neither party ever made a commitment to universal suffrage, where every voting age American citizen can, and should, vote. With the billions of dollars spent on elections, they only inspire half of America to bother with it. With a margin of victory so close, they care not that six million people can’t vote: two million in cages, and four million under community supervision. This is not to discount the hard work of some individual politicians, but gains in that arena are still often the result of elected officials bending to the pressure of people who believe in voting rights for all, and overwhelmingly from people who believe that the cycle of neglect, desperation, punishment, and neglect can only be broken by encouraging people back into a unified community.
Both of these parties are in a state of division, blaming, and introspection. It is unclear what way they will go, and which internal cabals will emerge in their next generation. Meanwhile, we can take this opportunity to educate ourselves on the fallibility of leaders, and how close we really can be to internal combustion. The axiom that “people elect the leaders they deserve” feels sadly correct. We have not done enough popular education on racism, xenophobia, and sexism. We have not gotten out of our bubbles.
The Movement Continues
Every organizer and dedicated activist I know has doubled down on their resolve to bring unity, equality, and justice to the world. We knew what we were facing all along, and that certain elements did not simply fade away. The question is not whether a small group of committed individuals will carry the torch to the future of another small group of committed individuals. The question is not whether we can rally together and protect each other. These things will happen. The real question is whether we can articulate an America that captures the imagination of the masses, across race and class. It will not be due to one iconic leader, but we need leaders to inspire and keep us together. It will not be due to the funding of foundations that keep our non-profits afloat, but we need these organizations to serve as our bedrocks of the grassroots. What we need is a wave that includes artists, accountants, lawyers, carpenters, retail workers, coders, mechanics, athletes, children, cooks, and everyone creating a new America, the one that continually feels just beyond our reach. This, we can do.
If we do not increase our coalition of sustainable communities built on love, we may find other things that can happen, as Fela says: “Just like that.”
There can be little doubt that a cultural rise of Punishment-Politicians led America to be the peculiar mass incarcerator of the world. This has not been confined to one geographic area, nor to only locking up people of Color. It has been a Movement, which is best described as a force larger than the sum of its parts. So, although racism, slavery, Puritanical brimstone, Native American genocide, drug hysteria, capitalist elitism, militant nationalism and genuine safety concerns have all been key elements to building the American prison gulag… it has been successful because these things do not exist in isolation.
Today Ban the Box, tomorrow Voting Rights. The Louisiana House of Representatives has heard about prisons and prisoners quite a bit in recent years, and now they are also getting an earful about rehabilitation, reentry, recidivism, probation and parole; about people living in the community and facing the policies of exclusion.
Neo-Fascists: “Coming Out” with Pride.
Capitalists: Why solve a problem if you can profit off it?
Purple States, Civil Rights, and 21st Century Disenfranchisement
2016: The year of voting rights, public defenders, sentencing reform, and Albert Woodfox
The Epicenter of Race, Voting, and Mass Incarceration
Prior to the Civil War, there was no need for convict labor for large public projects such as the levee system. There was also no need to disenfranchise massive numbers of people when elections came down to contests between wealthy white men. The slave system maintained the status quo for as long as historically possible. Too long, of course. And where power is threatened, the powerful will generally take action to assure threats are eliminated.
In 1868, Louisiana expanded the class of convicted people who were denied voting rights. It went from the white men who were convicted of forgery, bribery, and perjury to barring all men (Black or white) who were “under order of imprisonment.” Meanwhile, the labor force continued nearly uninterrupted because the 13th Amendment allowed slavery to continue as long as people were convicted of crimes. As one plantation owner famously remarked, “before we used to own them. Now we just rent them.”
The equation is simple:
Conviction + Disenfranchisement = Hard Labor – Political Power to Change.
This arrangement went largely untouched for 150 years. Along the way, Louisiana became the most notoriously creative in ways to suppress Black voting while also building up the disproportionately largest gulag in the world. Poll Tax, Grandfather Clause, Understandings Clause, and outright murder were some of the most well known tactics to maintain power, but people should recognize that Louisiana is one of only two states that allow a non-unanimous jury for convictions.
When Albert Woodfox, Herman Wallace, and Robert King were organizing in the early 1970s to ease the oppression of legally enslaved people at the Louisiana State Penitentiary, when they were organizing under the most logical banner of the Black Panthers, their demise was practically assured by history. Surprisingly, they were not outright murdered and joined a long lineage of activists that did not begin with Dr. King, Malcolm X, or Fred Hampton. And just as surprisingly, they survived the initial backlash to a wrongful accusation of killing a prison guard, unlike Emmit Till, Trayvon Martin, Mike Brown, Eric Garner, or Tamir Rice (none of whom were accused of killing a law enforcement officer). Miraculously, they overcame horrid conditions of oppressive incarceration, unlike Sandra Bland, Freddie Gray, and Gynnya McMillen- none of whom, mysteriously, even made it past the police station. It is amazing that they were not gunned down in the prison yard like George Jackson, a Black Panther incarcerated in California, that led to the 1971 Attica Prison Riot in New York.
The Right to Defend Against Government Accusations
One can look back at the early 1970’s and reasonably conclude that Woodfox, Wallace, and King never had a chance. What we need to know, however, is would they have a chance today? Woodfox had a second trial, a second one where the state acted so unfairly it was also thrown out by reviewing courts. Today politicians use a budget crisis as a reason to underfund the constitutionally mandated right to counsel, and yet the government is not using that same crisis to close down prison and jail cells.
Those wondering why the ACLU is suing the Orleans Public Defender and the state body that funds the public defenders need to realize it is actually a person denied counsel who is suing. Such a person is the only one with a right to sue, as the right attaches to the person accused of a crime. As it happens, this plaintiff’s claim impacts us all. Will we get a lawyer? Will the 300 people, whose childhood sentences of Life Without Parole were recently thrown out, get lawyers? Would Woodfox have gotten a proper team appointed for a third trial? One way to keep the equation going is to overwork the defense side and continue the conviction system as originally designed. But it is not all static, of course. Slave labor may not be the needed outcome of the equation anymore, as it has some new variables:
(Accusation – Funded Defense Team) +
(Vigorous Police Investigation x Political Ambitious District Attorneys)
=
Convictions +
Prison Employment +
Contracts for Services (Medical, Food, Telecommunications, Sanitation, Transportation)
+ Incarcerated People Who Are Not “Unemployed”
The public defender has no “right to defend,” thus a demand made upon them, to be passed along to the state budget crunchers, must come from the people with constitutional rights: defendants. While Louisiana struggles with a budget crisis, they can think about the multiple millions of dollars spent trying to maintain the wrongful convictions of the Angola 3 (and many others), and the cellblocks dedicated to wrongful convictions, think of the children sentenced to die in prison, along with Orleans District Attorney Leon Cannizaro and Jefferson Sheriff Newell Normand’s recent comments: about how easing marijuana possession enforcement will basically send New Orleans into a murderous crime spree. Rather than tie marijuana to Doritos, as most Americans do, these out-of-touch elected leaders tie this drug (legalized in several states) to guns.
Marijuana is a “gateway drug,” but not to some realm of intoxicated violence and the bloody business of unregulated commerce. It is a gateway drug to the criminal justice system, where someone gets a “strike” or probation status that forever erodes future constitutional rights.
Peeling Back 150 Years of Construction
Taking a public health approach to the problems our criminal justice system has helped create and exacerbate will not happen overnight. It will come through changes both modest and bold. We need a combination of increased rights, services provided, inspiration, and reducing the punishments. In some cases, punishment needs to be outright eliminated.
Louisiana, Minnesota, and Florida are currently moving towards a citizenship dilemma that will never go away until resolved: When will people living in our communities, on probation or parole, have voting rights- the most basic element of citizenship and democracy. Until this mass of people (over 70,000 in Louisiana) have this tenet of citizenship we will always feel excluded, and be excluded. This exclusion extends to our children, into our friendships, and impacts our workplaces.
Maryland’s legislature recently voted to override their governor’s veto, restoring citizenship to all people who are outside of prison and living in the community. Kentucky, however, has restored then reversed voting rights by executive orders; proving the tenuous nature some view this fundamental cornerstone of democracy.
Those who oppose voting rights don’t believe in democracy.
They are simply un-American.
While very fundamental questions linger about allowing people back into the community from where we come, some make moves on reducing punishments. It is not possible for the 80 million convicted Americans to undergo the brutality, including decades in torturous solitary confinement, suffered by the Angola 3. The taxpayers cannot afford it, the communities cannot absorb it, and the individual families cannot survive it.
President Obama recently eliminated solitary confinement for children in federal custody. Acknowledging that sensory deprivation amounts to torture is a significant moment in mainstream political history, and hopefully our leaders will soon recognize that torture should not be tolerable on our adults. Hopefully state leaders will follow federal leaders, who should be incentivizing such reductions in brutality in the same way federal dollars contributed to the massive spending boom required to build mass incarceration as we know it.
The federal government is close to passing a sentencing reform act that would apply to their federal prisoners. It is important for people to understand that such federal initiatives DO NOT apply to people in state custody, as each state has its own set of independent state laws that are only limited by the U.S. Supreme Court’s interpretation of “cruel and unusual punishment” and protected rights of defendants.
Those who wonder what each of the latest federal bills “will do,” they should be asking the interpretations by impacted people- those who have a stake in the actual success of the litigation beyond claiming victory in its passage. As one would expect, federal legislation often doesn’t begin by asking for too much and typically gets watered down further in the process. If a bill has a modest, but genuine, impact it should be embraced as such rather than over-hyped in a manner that leads people to wash their hands and proclaim a job “well done.”
The federal Fair Sentencing Act will immediately impact some people, and represent a downward trend in sentencing laws, but will not go much further in producing lasting reductions in mass incarceration. Reducing the mandatory minimum on 1kg of heroin / 5kg of cocaine / 280g crack / 50g meth (from ten years to five) will only help the few people who may be serving under ten years for such a major amount of hard drugs. Similarly, the reduction on 100g of heroin / 500g of cocaine / 28g of crack / 100 marijuana plants / 5g of meth (five years minimum to two) will only help those few people where the judge would have given them less.
Doing What You Can, Where You Can
As VOTE’s executive director Norris Henderson always says, “Get in where you fit in.” Some will work on citizenship while others on sentencing. Some gravitate to addiction services and others need to build homes, but ultimately we need to be building our community in ways that involves us all, that puts us all in it to win it, collectively ensuring injustice does not occur.
Welcome home Albert Woodfox.
May you live a long and peaceful life full of all the things you hold dear.
May your spirit guide us along the arc of humanity, the one that bends towards justice.
May you grow ever stronger through vindication.
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