Reverence for Punishment

We have to join together to ensure drug dealers are punished swiftly and severely. We have to hold every drug user accountable because if there are no drug users, there would be no appetite for drugs…In a nutshell, what the President’s plan doesn’t include is enough police officers to catch the violent thugs, not enough prosecutors to convict them, not enough judges to sentence them, and not enough prison cells to put them away for a long time…That’s why we think the President should triple, triple the commitment he’s made tonight for police, prosecutors, and judges for our cities and our states.

Joe Biden, 7/31/1989

People aren’t fans of Uncle Joe for a variety of reasons: his unabashed history of plagiarism; his old-fashioned good-ol-days “malarkey” talk and attitude; his penchant for poking, stroking, hugging his constituents whether or not they appreciate receiving it. This essay, among other things, is very broadly about why I am not a fan of him. I suggest that he represents one of the darkest paths that many well-meaning and well-intentioned people in this country followed in a prior generation — deep rutted paths that are not so easily climbed out of once you have started down on them. What I’m talking about is a reverence for punishment, specifically by means of long, long prison sentences. Long sentences are common in this country, they are often shocking to those unfamiliar with the prison system, and they have been supported and lauded by some of the most influential voices in liberal politics for decades.

A man named Willie Nash was in the local jail of Newton County, Mississippi on a misdemeanor charge, when he gave his cell phone to a guard and asked if he could charge it. With a simple gesture, shit hit the fan. For the crime of possessing a cell phone in prison (a phone which cops and guards had apparently overlooked during routine searches) and based on his criminal history, Nash was sentenced to 12 years in prison, with his sentencing judge noting that he should consider himself “fortunate” that he didn’t receive the fullest term available.

This month, the Supreme Court of Mississippi unanimously upheld Nash’s brutal sentence; after all, it is the law in Mississippi, as per a 2012 bill establishing a 3 to 15 year sentence for this offense. Justice Leslie King — the one African-American judge on the court — wrote a thoughtful and troubled special concurrence in which he decried the “failure of our criminal justice system on multiple levels” this ruling represented. While this case has led to much outrage and consternation — and while the the SPLC is already filing a constitutional appeal — it’s not often that courts can intervene in what is considered harsh and excessive sentences. Just last month in New York, a Court of Appeals judge issued his own blistering dissent over a 3-to-6 sentence for a variety of crimes that began over a Limearita — a search incident to arrest revealed a small stash of counterfeit bills and cocaine. “Even with the minimum sentence,” writes Judge Rowan Wilson, “he is losing three to six years of his life, the elderly people in his community whom he has been helping will be without his assistance, and taxpayers will spend somewhere between $210,000 to $1,000,000…None of that would have happened had he been affluent, drinking rosé with a chilled lobster picnic splayed out on Central Park’s Great Lawn on a sunny summer afternoon.”

When a state’s highest court upholds lengthy sentences, there is an equally higher burden in appealing to the federal courts for review. It’s well settled that an excessive sentencing can be so harsh that it becomes unconstitutional. As early as 1910, the Supreme Court in Weems v United States reviewed with great horror the conviction of a man who committed minor white-collar fraud, and was sentenced to twelve years hard labor. Or, as his sentence described, “labor for the benefit of the state. They shall always carry a chain at the ankle, hanging from the wrists; they shall be employed at hard and painful labor, and shall receive no assistance whatsoever from without the institution.” In overturning this punishment as cruel and unusual, the Supreme Court of 1910 — hardly a liberal and empathetic era! — wrote in language and philosophy that would be familiar today: “the Eighth Amendment is progressive, and does not prohibit merely the cruel and unusual punishments known in 1689 and 1787, but may acquire wider meaning as public opinion becomes enlightened by humane justice.”

This public opinion has been enlightened by human justice more and more in the 110 years since the Supreme Court rescued Weems from years of torturous servitude. Yet most cruel and unusual punishment cases before the highest courts are rarely focused on the length of the sentence itself. Your prisoner’s appeal has a better chance of convincing the federal courts if it focuses on what’s called “conditions of confinement” — inmates complaining about deplorable prison conditions, lack of medical care, or lack of protection from other inmates. But when it comes to sentencing length, the Supreme Court — and I would say, the average American — doesn’t much care about the length, so long as the conditions of confinement are not hellish.  And so our prisons are full of people who in some cases have been serving astonishingly long sentences. The record holder for longest-serving prisoner in the United States currently is Francis Smith of Connecticut, who murdered Grover Hart, a nightwatchman at a Greenwich yacht club, in the summer of 1949 (victim born in 1881, Garfield administration). Initially sentenced to death, his sentence was commuted two hours before he would have been electrocuted. He remains in state custody to this day.

Similarly, John Phillips of North Carolina, who was arrested for the rape of a five-year-old girl in Durham in April 1952, 68 years ago. He was found at the time to be was a “moron” with the mental age of a 7-year-old, yet 1952 was a different time for both conceptions of capital crime and conceptions of diminished culpability. Unlike today, rape was a capital offense in many states throughout much of the 20th century; rape of a child a far quicker way to receive a death warrant than rape of an adult. Between 1930 and 1972 in the United States, 455 people were executed for rape; 97.3% of these executions occurred in southern states, like North Carolina, which encompassed the former Confederacy. Even in northern states, pre-1960s execution records are replete with execution as punishment for rape. See: Morris Cohen, a white male, electrocuted in Chicago for attempted rape in January 1933; Roy Lathco, a white male, hanged in Baltimore for rape in April 1948; Theodore Holmes, a black male, hanged in DC for rape in March 1949; John Bennett, a black male, hanged by the Army in Fort Leavenworth for rape in April 1961. During World War II, the U.S. military executed 98 servicemen for rape in the European theater. Rape of a child would be a capital offense in some states until Kennedy v Louisiana in 2008; even President Obama strongly supported the death penalty for rape of a child during the runup to the 2008 election. And so John Phillips pled guilty to avoid the death penalty for rape, and remains in the custody of North Carolina prisons even as I write this in January 2020, sixty-eight summers later.

These sentences survive through huge spans of time between Americas that no longer resemble each other. New York’s infamous Paul Geidel was released from prison in 1980 to live out the rest of his years in a downstate nursing home after serving almost seven decades in prison for a murder he committed as a teenager in 1911. In the closing years of the Taft presidency, Geidel suffocated a stranger, William Jackson, with a rag in a midtown hotel room in a robbery worth a few dollars (the victim himself born in 1838, during the Martin Van Buren administration). Geidel died during the closing years of the Reagan era in a world of radio, television, democracies worldwide, a city and world changed beyond recognition from what once it was. Even smaller sentences realize significant gaps in spatial realities. I recall a seminar in college put on by the campus social justice group, featuring two brothers who had served 25 years in federal prison for selling crack within the confines of the District of Columbia. They were jailed during the mid-1980s, to be released in 2010 or 2011. “Everyone has trucks nowadays,” said one. “When I was growing up, nobody had trucks. Now it’s all Hummers, Fords, big, big cars.”

When I briefly dipped my toes into criminal defense, one of my first clients expressed his hardship and shock in adjusting to a world that had moved on, prompting comparison to Brooks in Shawshank Redemption who couldn’t fit in with the fast-paced modern life. When he returned to the streets of Minneapolis, he observed that even the skyline itself had changed. The Minneapolis of the past was a city of empty grain elevators, encumbered by aging and obsolete industrial infrastructure, ghostly railyards where the homeless and transient could congregate in cuts and underpasses away from the sight of the mainstream public. But new Minneapolis had transformed into a city of skyscrapers and light rail, glistening modern apartments and condos supplanting those dusty railyards, landscaped parks erupting through the abandoned warehouses. And yet, years and years later, he still knew the exact intersection where he could purchase crack cocaine.

These are years of a lifetime gone – in so many cases, a total spoilage of life. The human costs inspire stupor: missed funerals of friends and family, weddings of your children, the aesthetic content of mundane natural beauty obscured by concrete walls. For such penalties, we hope that there’s good reason; that the legislators who thought them up were doing so after great deliberation, taking into account all the possible failure points and downsides. We trust our legislators to act in our best interests and to thoroughly know the pros and cons of a given plan they are advocating — ideally, right?

Some things, like death and taxes, are permanent: personally, I believe that no matter the revolutions that might come, every society will need first responders and criminal investigators to keep order during emergencies. No matter how progressive and abolition-friendly a government we elect, there’s some hard questions that must be resolved as a requirement to governance: what should become of a noncustodial parent who kidnaps a child? What should become of a con artist posing as a doctor who kills children out of ignorance? Or a white collar businessman laundering money on the side through sex trafficking? These are not petty concerns about cases on the edge; the maintenance of stability and the everyday distribution of justice is one of the core, crucial raisons d’etre for a state. Responding to 911 jobs, investigation, apprehension, and the click of handcuffs aren’t going anywhere anytime soon. Presuming that detectives, prosecutors, courts and trials are likely to stick around for good in some form, our next question is both our most crucial and most difficult: sentencing and punishment. The stigma of conviction and the loss of years of incarceration has historically been wielded in ways that led to great disparity — black, poor, mentally ill, and politically radical felons were executed, while those who were not received leniency. It’s relatively easy to catch the dude running out of the house with the bloody knife caught on surveillance video, harder to build a case and try it to verdict — but after the jury comes back, how do you fairly determine a punishment for human fault? How do you entrust The Power to Punish in a way agnostic to the uncertain biases of mankind?

After all this lengthy preface, we arrive at Joe Biden.

During the progressive years of the post-Civil Rights era, it was a much-discussed goal to make sentences more fair: to take power out of the hands of judges who might have their biases, to sentence individuals equally for the same crime regardless of race or any other extrinsic factor. The Comprehensive Crime Control Act of 1984 was the culmination of this idea, pushed heavily by Biden, to offer a systematic, regulated, mode of nationwide criminal sentencing governed by “sentencing guidelines” and lengthy mandatory sentences which no judge could deviate from. With this bill, Biden — along with the bill’s other major backers liberal Ted Kennedy and reactionary Strom Thurmond — established the U.S. Sentencing Commission, which created a variety of legal “reforms” to the insanity defense, bail, marijuana, asset forfeiture. Yet, these “reforms” all increased rather than limited punishment. This bill removed federal parole, and restricted good-time credit to 15% of a sentence (or, 54 days per year).  This “insanity reform” was largely a response to the outrage over John Hinckley’s successful insanity defense for his attempted assassination of Ronald Reagan. For federal criminal practice and the sentencing of federal offenders, these guidelines represented an upheaval — and states were urged to reform their own criminal codes to catch up to what the federal government was doing, and so “mandatory minimum sentences” became a byword in the mouths of attorneys decrying the blind harshness of the new system.

For two hundred years, from 1789 to 1989 when the Supreme Court case Mistretta upheld the sentencing guidelines, federal criminal sentencing had been essentially the same. But in the political operations orchestrated by Biden, Kennedy, Thurmond and the harsh-on-crime politicians of Reagan’s America, we witness a sea change. Everyone “knows” about mass incarceration, inasmuch as it’s a socio-cultural talking point, but it’s still worth looking at the charts and recalling just how large the federal prison population jumped from around 25,000 in 1980 to around 70,000 in 1990, peaking at approximately 220,000 in 2010. This immense rise in prison population doesn’t reflect the jolting rise of crime dating from the 1960s-1970s and declining in the 1990s; we might credibly observe this wholly from the realized scheming of the Kennedy-Biden-Thurmond sentencing guidelines. As prisons filled across the country in a historic swelling perhaps unprecedented in modern countries, Ted Kennedy and Joe Biden never introduced legislation to reform or abate their guidelines, even as incarceration rates climbed. Rather than recognizing error, Biden forcefully pushed for the 1994 Omnibus Crime Act, which expanded the death penalty and mandatory minimum sentences. Biden also sponsored and partly wrote the Anti Drug-Abuse Act of 1986 which created disparity between rock and powder cocaine, and sponsored the Anti Drug-Abuse Act of 1988 which led to loss of college scholarship money for drug offenders, including (incredulously) those convicted of marijuana use.

You don’t have to be an abolitionist to step back and seriously wonder what it means to have 4.5% of the world’s population but 25% of the prisoner population. I suppose the typical counter is that a high tolerance for incarceration is better than higher rates of homicide, such as those realized in other industrialized high-population countries like Brazil, or Russia, or South Africa. And yet, what does any of that have to do with permitting a marijuana-only offender to serve almost 40 years? The laws that Biden and his cohort proudly wrote, advocated and signed for sent many to prison, including cases as infamous as a 1990 ruling sentencing a possessor of LSD based on the weight of the paper the drug was soaked in. Notable judge Richard Posner lamented the cruelty and absurdity of the sentence, writing that “a quart of orange juice containing one dose of LSD is not more, in any relevant sense, than a pint of juice containing the same one dose, and it would be loony to punish the purveyor of the quart more heavily than the purveyor of the pint…If Marshall were not a dealer at all but dropped a square of blotter paper containing a single dose of LSD into a glass of orange juice and sold it to a friend at cost (perhaps 35 cents), he would be subject to the ten-year minimum.”

While Biden, Kennedy, and the senators who signed the crime bills — including as I hate to admit, even Bernie Sanders, who signed the 1994 bill —  turned their backs on the harm that was being done. And while Hillary Clinton referred to juveniles involved in crime  “superpredators” who must “be brought to heel” by harsh treatment, the Supreme Court was slowly untying the hands of judges, permitting them to offer leniency. In Coon v United States, Justice Kennedy held that while “the goal of the Sentencing Guidelines is, of course, to reduce unjustified disparities and so reach toward the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice…however, it has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” And so, the Court approved giving district court judges the discretion to issue “downward departures” based on mitigating traits of the offender and the crime (Ginsburg and Breyer dissented, showing how discrepant the “liberalism” of the 1980s and 1990s might be from today).

While the awesome power of these guidelines has been tapered slightly through the permission of judge-approved “downward departures,” as well as what’s known as 5K1.1 departure for giving “substantial assistance to authorities,” federal sentences still tend to be longer than state penalties. Conviction rates tend to be far higher, and the criminal defendant doesn’t face a potentially overworked and underfunded local DA’s office, but the unlimited resources of the FBI and other federal agencies. And so harsh federal sentences are handed out frequently: 6720 inmates are serving life, and over half of them (3861) serving life without parole. Surely by the time I finish this essay, a dozen might have died in prison. And all for what? That Minneapolis federal client I mentioned before once told me that his favorite part of his nearly thirty-year sentence in federal prison was the coffee he was allotted every morning. It was the one change that made him really feel a little different. He stayed away from the hardcore drugs that the U.S. penitentiary lifers would get into, but he enjoyed sitting out and drinking a cup of muddy coffee: the only evidence of change imparted by days of a multi-decade sentence.

The end of a long prison sentence may take many forms, but in the end there are four ways out of a sentence: suicide, homicide, natural death, or release. Melanie Liverpool, who pushed her victim Connie Watton in front of a subway train in Times Square in November 2016, committed suicide last year at Bedford Hills Correctional early on into her 20-to-life sentence. Notorious Boston gangster James “Whitey” Bulger was a lammister for 16 years until his eventual conviction for eleven racketeering-related homicides. Five years into his life sentence, an 89-year-old wheelchair-bound Bulger was murdered by multiple fellow inmates in federal custody. His eyes were gouged out and his tongue hacked off; the killing was likely orchestrated by a New England Mafia associate serving life. Winston Moseley, the man who raped and murdered Kitty Genovese in a now-mythical (and likely exaggerated) case of bystanders failing to act, perished in 2016 after fifty-two years of incarceration: a quiet end to a riotous sentence (which notably featured an escape in which he raped another woman, and participation in the Attica prison riot which left 33 prisoners and 10 COs dead).

Or, you might find release — as was Herman Bell, released in 2018 after 44 years in prison he earned for ambushing and murdering two police officers in Harlem (Waverly Jones, black, and Joseph Piagentini, white) — targets of the Black Liberation Army’s early 1970s crime wave. After 44 years, a parole board agreed that he had served his time. This is the hope of everyone serving life or a long sentence — to hit the streets again. But ultimate influence on who gets to hit the streets and who drowns in concrete are the legislators who craft the laws that govern criminal prosecution.  Not every criminal who commits the same offense is the same. There are professionals who maintain human contact  with offenders — attorneys, detectives, social workers, psychologists and such — who I strongly believe are better at diagnosing a criminals’ potential for future crime. These folks are much better equipped to determine who is the young wiseguy who’ll calm down and age out of crime or the contrite offender capable of reform, and contra: the career criminal, the person who relishes in harm and pain and finds any excuse for it, whose friends and codefendants fear him.

Who I don’t particularly trust to determine penalties for criminals are those legislators writing statutes, removed from the trenches of criminal law, removed from the struggles of high-crime neighborhoods, unable to differentiate in their legalistic schemes who deserves a break and who doesn’t. After all, the legislators aren’t even expected or required to be internally consistent! After a lifetime advocating for harsh sentences for drug offenders and crackdowns on leniency in sentencing, good-time credit and parole, Biden gets to inexplicably claim in a recent debate that “nobody should be in jail for a nonviolent crime” — a position he has never advocated before in all his history. And yet on that debate stage, not a single person asked a follow up about what he feels should happen to bosses committing wage theft, politicians taking bribes, police committing perjury on the stand, bankers filing fraudulent mortgage foreclosures, or the various nonviolent offenders who commit firearm trafficking, dumping toxic waste into the Hudson, labor exploitation, high treason, domestic no-contact order violation, etc.

And so we get a country somehow overpoliced and underpoliced at the same time — where the U.S. has one of the lowest murder clearance rates in the world, and can only clear around half of all violent crime and ⅓ of rape cases. Where Brooklyn’s infamous Tiffany Harris can get released over and over again after repeated anti-Semitic assaults, but also see courts uphold 20-yearsentences for LSD based on the added weight of the paper to the drug; I’m on Posner’s side in finding such a construction absurd, especially more so considering the consequences. To me, this is a recipe for social failure, resentment, collapse.

Consider this essay a paean to local, personal understanding and relationships, rather than high-level bird’s eye edicts on criminal penalties handed down from on high. In many fields of life, everyone wants the script of “the right thing to do” or “the right thing to say.” The secret is that there is no script and trying to search for one is probably going to engender a worse outcome than building up experience from which to draw inferences and facts, and using that to inform how to deal with people every day. Especially in criminal law: sometimes what is truly right is not in the script; sometimes what is legal is not always fair. The ancient concepts of law and equity evolved in part because there are edge cases where what is legally “correct” is somehow offensive to the average person’s sense of justice. Jury nullification is one method of checking the power of long sentences given for legally criminal acts, the issues with which are obvious: Martin Luther King in his famous “I Have a Dream” speech spoke with righteous contempt about “Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification.” This Alabama where all-white juries routinely acquitted whites who had attacked blacks, such as KKK member Robert Chambliss, initially acquitted in 1963 of murder for the Birmingham, Alabama church bombing that killed four young black girls.

Small towns might be relatively more corrupt and dependent on community ties that lead to selective prosecution, but small towns also might be a place where a local cop could give you a break, juxtaposed to the facelessness anonymity of the big city beat. The local cops and local judges might have more bias and may not have the wisdom or prestige of federal officers of the court, but in the local courts the sentences are lower, compared to the mighty halls of federal court where a thirty-year sentence is pursued to produce a neat line item on an AUSA’s resume. State courts like New York use sentencing ranges, tempered by parole boards as well as a governor’s power to issue clemency; there is no parole in the federal system, and your only escape from your long sentence is the pardon power of Donald J. Trump.

And so we orient towards this country’s classic conflict — federalism, the push and pull between central control and decentralized local control. The federalization of crime — absorbed into the jurisprudence of systematic agency guidelines rather than by individual judge and backed by federal power — has been overall destructive. The expansion of federal power and harsh federal sentences is a powerful weapon, and agencies have eagerly jumped to use it in more and more circumstance. The most powerful, educated people from the most prestigious schools, many of them who claim to be politically liberal, clamor to wield those sentencing guidelines in service of whatever cause they would like. And as that power accrues it becomes harder to stop as its use becomes self-justified by operators of the bureaucratic machine who hunt for more places in which to deploy this intoxicating power. Look no further than ICE expanding its role into domestic criminal investigations rather than immigration — likely a way to salvage its reputation and existence in the wake of public hatred over scenes of internal immigration enforcement.

This is why I don’t trust people talking about using “the algorithm” to determine what is justice. I don’t trust anyone with easy answers or simple descriptions of complex patterns, patterns layered on top of each other evolving after centuries of historical context. The criminal law we use and theories behind it predates the United States, it predates capitalism, it predates the common use of the English language in the courts itself. It’s a human business, which can’t be automated.

You can’t say “the algorithm says x” or “the algorithm suggests y.” The algorithm doesn’t think. It has no agency. Who thinks and decides and sculpts the laws are the legislators who create the laws, and while we may disagree with them, we can at least ask them to actually understand the effects of what they are doing.