Executing The Innocent

Carlos deLuna

"No one can ever say again with a straight face that America doesn't execute innocent men. No one."  -- Andrew Rosenthal, The Atlantic

Carlos DeLuna was executed in 1989 for the 1983 stabbing death of a gas station clerk in Corpus Christi, Texas.  The Columbia University Human Rights Review has just published its Spring 2012 issue devoted entirely to demonstrating that De Luna was innocent and that it was another Carlos - Carlos Hernandez -- who committed the murder.  The book-length article, entitled "Los Tocayos Carlos: Anatomy of a Wrongful Execution," was authored by Columbia law professor James Liebman and his team of students.

Rosenthal's piece in The Atlantic and Michael McLaughlin's at Huffington Post provide excellent summaries of the details of this deeply troubling case.

 McLaughlin cites some of the key findings of the investigation:

• The eyewitness statements actually conflict with each other. What witnesses said about the appearance and location of the suspect suggest that they were describing more than one person.
• Photos of a bloody footprint and blood spatter on the walls suggest the killer would have had blood on his shoes and pant legs, yet De Luna's clothes were clean.
• Prosecutors and police ignored tips unearthed in the case files that Carlos Hernandez, an older friend of De Luna, who had a reputation for wielding a blade, had killed Lopez. The defense failed to track down Hernandez, who bore a striking resemblance to De Luna.

This was a case of "epic malfeasance and misfeasance," Rosenthal writes, in which the police, prosecutor, defense lawyer and judge all contributed.

The execution of an innocent man over two decades ago cannot be dismissed, however, as an isolated case from a time when procedural safeguards were not as rigorous as they are today.  Indeed, Rosenthal cites to several recent capital cases in which there remain serious and substantial questions of innocence.

But this well-investigated, extensively documented report, as Rosenthal writes, "ought to end all reasonable debate in this country about whether an innocent man or woman has yet been executed in America since the modern capital punishment regime was recognized by the Supreme Court in 1976."

Another Trial On Steroids

After an earlier mistrial, Roger Clemens is being tried in federal court on perjury charges based on his testimony before Congress in 2008, in which he stated that he never used steroids or human growth hormone. 

I have long despised Clemens for his petulance, his arrogance and not least, his beaning of Mike Piazza in 2000, followed in the the World Series of that year with his inexcusable heaving of a piece of  broken bat at Piazza after it was shattered by a pitch.   Nevertheless, for the reasons I explored in a piece re-posted below on the Barry Bonds trial, the case serves no purpose and is a colossal waste of resources.

Trial On Steroids

So many people in and out of baseball hate Barry Bonds passionately.  He was a selfish player who focused unduly on his own statistics.  He is arrogant and unapologetic.  He has always treated the press with great disdain.  He had his own Barcalounger in the Giants' clubhouse.  Unlike, perhaps, more sympathetic marginal or fading players, he was a brilliant player in his prime when he felt compelled to cheat by using steroids.  He is a petty man who cheated because he was jealous of Sammy Sosa and Mark McGwire, and wanted to become not just the best all around player, but the home run king.  And it worked; he not only broke McGwire's single-season home run record, even more egregiously, he eclipsed the hallowed career home run mark of the beloved Hank Aaron.  Have I missed anything?  Oh, and he denied knowingly taking steriods when forced to testify under oath before a grand jury.

For the last of these, Bonds is on trial, charged with lying to the grand jury and obstruction of justice.  It seems, however, that those who hate Barry Bonds hope he is humiliated, found guilty, and sentenced to a long prison term for his many other other non-criminal offenses.


I am not one of the Barry Haters.  Watching Barry Bonds play for the Giants, both pre- and post-alleged steroid use was one of my greatest thrills as a baseball fan.  Every time I went to the ballpark I felt it was a privilege to be able to see one of the most amazing players to have ever played.  In 2001, the year he hit 73 home runs, he hardly ever got a decent pitch (he walked 177 times that year), but when he did he crushed it.  Maybe steroids added some distance to these blasts, but the discipline, focus, timing and beauty of these at bats can't be credited to drugs.  The dude could flat out hit.

OK, with that disclaimer out of the way, I think the issue is less about Bonds and more about whether the United States Government should be expending so many resources on the use of performance enhancing drugs in baseball.  We now know that steroid use was rampant for about a decade, beginning roughly in 1995.  During that time, offensive numbers (and players’ heads) were suspiciously inflated, fueling a welcome fan resurgence after the devastating baseball strike of 1994.  Attendance soared and baseball ownership gleefully looked the other way.  While all other major sports put policies into place banning steroid use, baseball management did nothing.

I strongly believe that the federal government can play an important role in investigating and remedying many of our social ills, including, for example, poverty and hunger, discrimination, deceptive practices of financial institutions, unsafe food production, inhumane working conditions, environmental hazards and climate change. Steroids in baseball does not come close to making this list.  Nevertheless, we have had federal investigations, grand juries, and even Congressional hearings to address an issue that should have been -- and eventually was -- handled by baseball itself.  (Roger Clemens, for whom I have no warmth in my heart, will be tried this summer on allegedly lying to Congress; I take the same position on Clemens as I do on Bonds.)

In 2002, a federal investigation began into whether BALCO labs was providing steroids to athletes, including baseball players.  Barry Bonds and others testified before a grand jury which, in 2004, issued a 42-count indictment charging BALCO-related figures with running a steroid-distribution ring.  40 of these charges were eventually dropped.  The main target, Victor Conte, BALCO's founder, pleaded guilty to one count of money-laundering and served only 4 months in prison followed by 4 months' home confinement.  BALCO's vice president James Valente received probation.  Greg Anderson, Bonds' personal trainer, received 3 months in prison and 3 months home confinement, although he served additional time for refusing to testify against Bonds.

Given the relatively light sentences received by the major players in the scandal it is hard to see the dogged pursuit of Barry Bonds by federal prosecutors as anything more than vindictive, ego-driven and an attempt to justify the enormous waste of time and resources.  The scandal derailed the end of his career, when no team was willing to sign him.  His legitimate claim to being one of the greatest ballplayers of all time, even before his alleged steroid use, and all his remarkable records are considered tainted by many.  And, as I started this piece, he is reviled by all but the most die-hard Giants fans (and me).  Isn't that enough?

"Tough On Crime" No Longer The American Mantra?

By Inimai Chettiar and Alex Stamm, cross-posted from Huffington Post
  

Politicians over the last quarter-century have held strong to the conventional wisdom that being "tough on crime" will win elections and appease the public's appetite for safety. And for the most part, it seems Americans did feel this way (if you don't think so, just ask Michael Dukakis). To alleviate the public's overblown fear, or even to slake a thirst for retribution, our lawmakers have repeatedly deemed more private acts criminal and doled out harsher punishments for a generation. They selectively enforced these laws against the "feared" Black and brown communities, and in the end gave us a massive, unsustainable prison population unlike anything the world has ever seen.

But the pendulum of public opinion is starting to swing in the other direction. A Pew survey in March found that not only do 73 percent of Americans who have not experienced violent crime think that too many people are behind bars, but they're joined in that opinion by 70 percent of violent crime victims. Further, 88 percent of respondents agree that we have too many low-risk, nonviolent offenders behind bars, and 87 percent support increased access to reentry programs, such as job training.

The vast majority of Americans are ready to end our addiction to incarceration. What Americans want now is common sense and proportionality. Two factors have contributed significantly to the shift in opinion. First, Americans are increasingly aware of our appalling incarceration rate and its racial injustices. We have the largest prison population on the planet; we have 5 percent of the world's people but 25 percent of its prisoners. Our criminal justice system locks up Black and brown people for drug crimes at a far higher rate than their white counterparts -- even though white Americans use drugs at a higher rate. Our prison system is one of the largest human rights atrocities in the world.

Second, more Americans know that our incarceration rate is not only egregious but also unnecessary. Social scientists and policymakers have a generation of solid data proving that we can have fewer prisoners and less crime, and showing that unnecessary incarceration can actually increase recidivism. States have proven this over and over. New York did it; between 1999 and 2009, it reduced its prison population by 20 percent and its crime rate fell by 29 percent during that time. Texas did it too; thanks to smart reforms beginning in 2003, prison population growth stalled while its crime rate fell by 13 percent to its lowest level since 1973. These examples are a sample of a larger and growing trend—states and large cities are locking fewer people up, and their communities are getting safer.

Americans are tired of being tough on crime and are ready to be smart about crime. That's good news for lawmakers. It means that they can pass the necessary pretrial, sentencing, drug and parole reforms that this country so desperately needs without the fear of losing their next election. In fact, championing these types of reforms may actually start to win them votes. With the public behind them, we hope lawmakers will take action to finally end our incarceration binge.

Locking Down An American Workforce

Prison Labor as the Past -- and Future -- of American “Free-Market” Capitalism

by Steve Fraser and Joshua B. Freeman, cross-posted from Tom Dispatch

Sweatshop labor is back with a vengeance. It can be found across broad stretches of the American economy and around the world.  Penitentiaries have become a niche market for such work.  The privatization of prisons in recent years has meant the creation of a small army of workers too coerced and right-less to complain.

Prisoners, whose ranks increasingly consist of those for whom the legitimate economy has found no use, now make up a virtual brigade within the reserve army of the unemployed whose ranks have ballooned along with the U.S. incarceration rate.  The Corrections Corporation of America and G4S (formerly Wackenhut), two prison privatizers, sell inmate labor at subminimum wages to Fortune 500 corporations like Chevron, Bank of America, AT&T, and IBM.

These companies can, in most states, lease factories in prisons or prisoners to work on the outside.  All told, nearly a million prisoners are now making office furniture, working in call centers, fabricating body armor, taking hotel reservations, working in slaughterhouses, or manufacturing textiles, shoes, and clothing, while getting paid somewhere between 93 cents and $4.73 per day.

Rarely can you find workers so pliable, easy to control, stripped of political rights, and subject to martial discipline at the first sign of recalcitrance -- unless, that is, you traveled back to the nineteenth century when convict labor was commonplace nationwide.  Indeed, a sentence of “confinement at hard labor” was then the essence of the American penal system.  More than that, it was one vital way the United States became a modern industrial capitalist economy -- at a moment, eerily like our own, when the mechanisms of capital accumulation were in crisis.


A Yankee Invention

What some historians call “the long Depression” of the nineteenth century, which lasted from the mid-1870s through the mid-1890s, was marked by frequent panics and slumps, mass bankruptcies, deflation, and self-destructive competition among businesses designed to depress costs, especially labor costs.  So, too, we are living through a twenty-first century age of panics and austerity with similar pressures to shrink the social wage.

Convict labor has been and once again is an appealing way for business to address these dilemmas.  Penal servitude now strikes us as a barbaric throwback to some long-lost moment that preceded the industrial revolution, but in that we’re wrong.  From its first appearance in this country, it has been associated with modern capitalist industry and large-scale agriculture.

And that is only the first of many misconceptions about this peculiar institution.  Infamous for the brutality with which prison laborers were once treated, indelibly linked in popular memory (and popular culture) with images of the black chain gang in the American South, it is usually assumed to be a Southern invention.  So apparently atavistic, it seems to fit naturally with the retrograde nature of Southern life and labor, its economic and cultural underdevelopment, its racial caste system, and its desperate attachment to the “lost cause.”

As it happens, penal servitude -- the leasing out of prisoners to private enterprise, either within prison walls or in outside workshops, factories, and fields -- was originally known as a “Yankee invention.”

First used at Auburn prison in New York State in the 1820s, the system spread widely and quickly throughout the North, the Midwest, and later the West.  It developed alongside state-run prison workshops that produced goods for the public sector and sometimes the open market.

A few Southern states also used it.  Prisoners there, as elsewhere, however, were mainly white men, since slave masters, with a free hand to deal with the “infractions” of their chattel, had little need for prison.  The Thirteenth Amendment abolishing slavery would, in fact, make an exception for penal servitude precisely because it had become the dominant form of punishment throughout the free states.

Nor were those sentenced to “confinement at hard labor” restricted to digging ditches or other unskilled work; nor were they only men.  Prisoners were employed at an enormous range of tasks from rope- and wagon-making to carpet, hat, and clothing manufacturing (where women prisoners were sometimes put to work), as well coal mining, carpentry, barrel-making, shoe production, house-building, and even the manufacture of rifles.  The range of petty and larger workshops into which the felons were integrated made up the heart of the new American economy.

Observing a free-labor textile mill and a convict-labor one on a visit to the United States, novelist Charles Dickens couldn’t tell the difference.  State governments used the rental revenue garnered from their prisoners to meet budget needs, while entrepreneurs made outsized profits either by working the prisoners themselves or subleasing them to other businessmen.

Convict Labor in the ‘New South’

After the Civil War, the convict-lease system metamorphosed.  In the South, it became ubiquitous, one of several grim methods -- including the black codes, debt peonage, the crop-lien system, lifetime labor contracts, and vigilante terror -- used to control and fix in place the newly emancipated slave.  Those “freedmen” were eager to pursue their new liberty either by setting up as small farmers or by exercising the right to move out of the region at will or from job to job as “free wage labor” was supposed to be able to do.

If you assumed, however, that the convict-lease system was solely the brainchild of the apartheid all-white “Redeemer” governments that overthrew the Radical Republican regimes (which first ran the defeated Confederacy during Reconstruction) and used their power to introduce Jim Crow to Dixie, you would be wrong again.  In Georgia, for instance, the Radical Republican state government took the initiative soon after the war ended.  And this was because the convict-lease system was tied to the modernizing sectors of the post-war economy, no matter where in Dixie it was introduced or by whom.

So convicts were leased to coal-mining, iron-forging, steel-making, and railroad companies, including Tennessee Coal and Iron (TC&I), a major producer across the South, especially in the booming region around Birmingham, Alabama.  More than a quarter of the coal coming out of Birmingham’s pits was then mined by prisoners.  By the turn of the century, TC&I had been folded into J.P. Morgan’s United States Steel complex, which also relied heavily on prison laborers.

All the main extractive industries of the South were, in fact, wedded to the system.  Turpentine and lumber camps deep in the fetid swamps and forest vastnesses of Georgia, Florida, and Louisiana commonly worked their convicts until they dropped dead from overwork or disease.  The region’s plantation monocultures in cotton and sugar made regular use of imprisoned former slaves, including women.  Among the leading families of Atlanta, Birmingham, and other “New South” metropolises were businessmen whose fortunes originated in the dank coal pits, malarial marshes, isolated forests, and squalid barracks in which their unfree peons worked, lived, and died.

Because it tended to grant absolute authority to private commercial interests and because its racial make-up in the post-slavery era was overwhelmingly African-American, the South’s convict-lease system was distinctive.  Its caste nature is not only impossible to forget, but should remind us of the unbalanced racial profile of America’s bloated prison population today.

Moreover, this totalitarian-style control invited appalling brutalities in response to any sign of resistance: whippings, water torture, isolation in “dark cells,” dehydration, starvation, ice-baths, shackling with metal spurs riveted to the feet, and “tricing” (an excruciatingly painful process in which recalcitrant prisoners were strung up by the thumbs with fishing line attached to overhead pulleys).  Even women in a hosiery mill in Tennessee were flogged, hung by the wrists, and placed in solitary confinement.

Living quarters for prisoner-workers were usually rat-infested and disease-ridden.  Work lasted at least from sunup to sundown and well past the point of exhaustion.  Death came often enough and bodies were cast off in unmarked graves by the side of the road or by incineration in coke ovens.  Injury rates averaged one per worker per month, including respiratory failure, burnings, disfigurement, and the loss of limbs.  Prison mines were called “nurseries of death.”  Among Southern convict laborers, the mortality rate (not even including high levels of suicides) was eight times that among similar workers in the North -- and it was extraordinarily high there.

The Southern system also stood out for the intimate collusion among industrial, commercial, and agricultural enterprises and every level of Southern law enforcement as well as the judicial system.  Sheriffs, local justices of the peace, state police, judges, and state governments conspired to keep the convict-lease business humming.  Indeed, local law officers depended on the leasing system for a substantial part of their income.  (They pocketed the fines and fees associated with the “convictions,” a repayable sum that would be added on to the amount of time at “hard labor” demanded of the prisoner.)

The arrest cycle was synchronized with the business cycle, timed to the rise and fall of the demand for fresh labor.  County and state treasuries similarly counted on such revenues, since the post-war South was so capital-starved that only renting out convicts assured that prisons could be built and maintained.
There was, then, every incentive to concoct charges or send people to jail for the most trivial offenses: vagrancy, gambling, drinking, partying, hopping a freight car, tarrying too long in town.  A “pig law” in Mississippi assured you of five years as a prison laborer if you stole a farm animal worth more than $10. Theft of a fence rail could result in the same.

Penal Servitude in the Gilded Age North

All of this was only different in degree from prevailing practices everywhere else: the sale of prison labor power to private interests, corporal punishment, and the absence of all rights including civil liberties, the vote, and the right to protest or organize against terrible conditions.

In the North, where 80% of all U.S. prison labor was employed after the Civil War and which accounted for over $35 billion in output (in current dollars), the system was reconfigured to meet the needs of modern industry and the pressures of “the long Depression.”  Convict labor was increasingly leased out only to a handful of major manufacturers in each state.  These textile mills, oven makers, mining operations, hat and shoe factories -- one in Wisconsin leased that state’s entire population of convicted felons -- were then installing the kind of mass production methods becoming standard in much of American industry.  As organized markets for prison labor grew increasingly oligopolistic (like the rest of the economy), the Depression of 1873 and subsequent depressions in the following decades wiped out many smaller businesses that had once gone trawling for convicts.

Today, we talk about a newly “flexible economy,” often a euphemism for the geometric growth of a precariously positioned, insecure workforce.  The convict labor system of the nineteenth century offered an original specimen of perfect flexibility.

Companies leasing convicts enjoyed authority to dispose of their rented labor power as they saw fit.  Workers were compelled to labor in total silence.  Even hand gestures and eye contact were prohibited for the purpose of creating “silent and insulated working machines.”

Supervision of prison labor was ostensibly shared by employers and the prison authorities.  In fact, many businesses did continue to conduct their operations within prison walls where they supplied the materials, power, and machinery, while the state provided guards, workshops, food, clothing, and what passed for medical care.  As a matter of practice though, the foremen of the businesses called the shots.  And there were certain states, including Nebraska, Washington, and New Mexico, that, like their Southern counterparts, ceded complete control to the lessee.  As one observer put it, “Felons are mere machines held to labor by the dark cell and the scourge.”

Free market industrial capitalism, then and now, invariably draws on the aid of the state.  In that system’s formative phases, the state has regularly used its coercive powers of taxation, expropriation, and in this case incarceration to free up natural and human resources lying outside the orbit of capitalism proper.
In both the North and the South, the contracting out of convict labor was one way in which that state-assisted mechanism of capital accumulation arose.  Contracts with the government assured employers that their labor force would be replenished anytime a worker got sick, was disabled, died, or simply became too worn out to continue.

The Kansas Wagon Company, for example, signed a five-year contract in 1877 that prevented the state from raising the rental price of labor or renting to other employers.  The company also got an option to renew the lease for 10 more years, while the government was obliged to pay for new machinery, larger workshops, a power supply, and even the building of a switching track that connected to the trunk line of the Pacific Railway and so ensured that the product could be moved effectively to market.

Penal institutions all over the country became auxiliary arms of capitalist industry and commerce.  Two-thirds of all prisoners worked for private enterprise.

Today, strikingly enough, government is again providing subsidies and tax incentives as well as facilities, utilities, and free space for corporations making use of this same category of abjectly dependent labor.

The New Abolitionism
Dependency and flexibility naturally assumed no resistance, but there was plenty of that all through the nineteenth century from workers, farmers, and even prisoners.  Indeed, a principal objective in using prison labor was to undermine efforts to unionize, but from the standpoint of mobilized working people far more was at stake.

Opposition to convict labor arose from workingmen’s associations, labor-oriented political parties, journeymen unions, and other groups which considered the system an insult to the moral codes of egalitarian republicanism nurtured by the American Revolution.  The specter of proletarian dependency haunted the lives of the country’s self-reliant handicraftsmen who watched apprehensively as shops employing wage labor began popping up across the country.  Much of the earliest of this agitation was aimed at the use of prisoners to replace skilled workers (while unskilled prison labor was initially largely ignored).

It was bad enough for craftsmen to see their own livelihoods and standards of living put in jeopardy by “free” wage labor.  Worse still was to watch unfree labor do the same thing.  At the time, employers were turning to that captive prison population to combat attempts by aggrieved workers to organize and defend themselves.  On the eve of the Civil War, for example, an iron-molding contractor in Spuyten Duyvil, north of Manhattan in the Bronx, locked out his unionized workers and then moved his operation to Sing Sing penitentiary, where a laborer cost 40 cents, $2.60 less than the going day rate.  It worked, and Local 11 of the Union of Iron Workers quickly died away.

Worst of all was to imagine this debased form of work as a model for the proletarian future to come.  The workingman’s movement of the Jacksonian era was deeply alarmed by the prospect of “wage slavery,” a condition inimical to their sense of themselves as citizens of a republic of independent producers.  Prison labor was a sub-species of that dreaded “slavery,” a caricature of it perhaps, and intolerable to a movement often as much about emancipation as unionization.
All the way through the Gilded Age of the 1890s, convict labor continued to serve as a magnet for emancipatory desires.  In addition, prisoners’ rebellions became ever more common -- in the North particularly, where many prisoners turned out to be Civil War veterans and dispossessed working people who already knew something about fighting for freedom and fighting back.  Major penitentiaries like Sing Sing became sites of repeated strikes and riots; a strike in 1877 even took on the transplanted Spuyten Duyvil iron-molding company.

Above and below the Mason Dixon line, political platforms, protest rallies, petition campaigns, legislative investigations, union strikes, and boycotts by farm organizations like the Farmers Alliance and Grange cried out for the abolition of the convict-lease system, or at least for its rigorous regulation.  Over the century’s last two decades, more than 20 coal-mine strikes broke out because of the use of convict miners.
The Knights of Labor, that era’s most audacious labor movement, was particularly exercised.  During the Coal Creek Wars in eastern Tennessee in the early 1890s, for instance, TC&I tried to use prisoners to break a miners’ strike.  The company’s vice president noted that it was “an effective club to hold over the heads of free laborers.”

Strikers and their allies affiliated with the Knights, the United Mine Workers, and the Farmers Alliance launched guerilla attacks on the prisoner stockade, sending the convicts they freed to Knoxville.  When the governor insisted on shipping them back, the workers released them into the surrounding hills and countryside.  Gun battles followed.

The Death of Convict Leasing

In the North, the prison abolition movement went viral, embracing not only workers' organizations, sympathetic rural insurgents, and prisoners, but also widening circles of middle-class reformers.  The newly created American Federation of Labor denounced the system as “contract slavery.”  It also demanded the banning of any imports from abroad made with convict labor and the exclusion from the open market of goods produced domestically by prisoners, whether in state-run or private workshops.  In Chicago, the construction unions refused to work with materials made by prisoners.

By the latter part of the century, in state after state penal servitude was on its way to extinction.  New York, where the "industry" was born and was largest, killed it by the late 1880s.  The tariff of 1890 prohibited the sale of convict-made wares from abroad.  Private leasing continued in the North, but under increasingly restrictive conditions, including Federal legislation passed during the New Deal.  By World War II, it was virtually extinct (although government-run prison workshops continued as they always had).
At least officially, even in the South it was at an end by the turn of the century in Tennessee, Louisiana, Georgia, and Mississippi.  Higher political calculations were at work in these states.  Established elites were eager to break the inter-racial alliances that had formed over abolishing convict leasing by abolishing the hated system itself.  Often enough, however, it ended in name only.

What replaced it was the state-run chain gang (although some Southern states like Alabama and Florida continued private leasing well into the 1920s). Inmates were set to work building roads and other infrastructure projects vital to the flourishing of a mature market economy and so to the continuing process of capital accumulation.  In the North, the system of “hard labor” was replaced by a system of “hard time,” that numbing, brutalizing idleness where masses of people extruded from the mainstream economy are pooled into mass penal colonies.  The historic link between labor, punishment, and economic development was severed, and remained so... until now.

Convict Leasing Rises Again

"Now," means our second Gilded Age and its aftermath.  In these years, the system of leasing out convicts to private enterprise was reborn.  This was a perverse triumph for the law of supply and demand in an era infatuated with the charms of the free market.  On the supply side, the U.S. holds captive 25% of all the prisoners on the planet: 2.3 million people.  It has the highest incarceration rate in the world as well, a figure that began skyrocketing in 1980 as Ronald Reagan became president.  As for the demand for labor, since the 1970s American industrial corporations have found it increasingly unprofitable to invest in domestic production.  Instead, they have sought out the hundreds of millions of people abroad who are willing to, or can be pressed into, working for far less than American workers.

As a consequence, those back home -- disproportionately African-American workers -- who found themselves living in economic exile, scrabbling to get by,  began showing up in similarly disproportionate numbers in the country’s rapidly expanding prison archipelago. It didn’t take long for corporate America to come to view this as another potential foreign country, full of cheap and subservient labor -- and better yet, close by.

What began in the 1970s as an end run around the laws prohibiting convict leasing by private interests has now become an industrial sector in its own right, employing more people than any Fortune 500 corporation and operating in 37 states.  And here’s the ultimate irony: our ancestors found convict labor obnoxious in part because it seemed to prefigure a new and more universal form of enslavement.  Could its rebirth foreshadow a future ever more unnervingly like those past nightmares?

Today, we are being reassured by the president, the mainstream media, and economic experts that the Great Recession is over, that we are in “recovery” even though most of the recovering patients haven’t actually noticed significant improvement in their condition.  For those announcing its arrival, “recovery” means that the mega-banks are no longer on the brink of bankruptcy, the stock market has made up lost ground, corporate profits are improving, and notoriously unreliable employment numbers have improved by several tenths of a percent.

What accounts for that peculiarly narrow view of recovery, however, is that the general costs of doing business are falling off a cliff as the economy eats itself alive.  The recovery being celebrated owes thanks to local, state, and Federal austerity budgets, the starving of the social welfare system and public services, rampant anti-union campaigns in the public and private sector, the spread of sweatshop labor, the coercion of desperate unemployed or underemployed workers to accept lower wages, part-time work, and temporary work, as well as the relinquishing of healthcare benefits and a financially secure retirement -- in short, to surrender the hope that is supposed to come with the American franchise.

Such a recovery, resting on the stripping away of the hard won material and cultural achievements of the past century, suggests a new world in which the prison-labor archipelago could indeed become a vast gulag of the downwardly mobile.

Steve Fraser is Editor-at-Large of New Labor Forum, co-founder of the American Empire Project (Metropolitan Books), and a TomDispatch regular.  He is, most recently, the author of Wall Street: America’s Dream Palace. He teaches history at Columbia University.  Joshua B. Freeman, a TomDispatch regular, teaches history at Queens College and at the Graduate Center of the City University of New York and is affiliated with its Joseph S. Murphy Labor Institute. His forthcoming book, American Empire, will be the final volume of the Penguin History of the United States.

Racial Justice In North Carolina

Judge Finds Racial Bias In Death Penalty Sentencing

By Keith Kamisugi, cross-posted from Equal Justice Society

Just days before the 25th anniversary of McCleskey v. Kemp, a North Carolina judge today ruled that racial bias impacted the death penalty conviction of Marcus Robinson and re-sentenced him to to life imprisonment without possibility of parole.

This was the first case applying the historic and ground-breaking Racial Justice Act, enacted by the North Carolina General Assembly and Governor Bev Perdue to reject the influence of race discrimination in the administration of the death penalty. The RJA represents a landmark reform in North Carolina, a state which has long been a leader in forward-thinking criminal justice policies.

As reported by The New York Times, Judge Gregory A. Weeks of Cumberland County Superior Court said that “race was a materially, practically and statistically significant factor in the decision to exercise peremptory challenges during jury selection by prosecutors” at the time of the trial of the inmate, Marcus Reymond Robinson. The disparity was strong enough, the judge said, “as to support an inference of intentional discrimination.”

Judge Weeks found that prosecutors deliberately excluded qualified black jurors from jury service in Robinson’s case, in Cumberland County, and throughout the state.

Rob Thompson, one of the prosecutors in Cumberland County, said in his closing arguments: “They do not have evidence of purposeful discrimination. They do not have some secret society of prosecutors maniacally plotting to remove people from juries. They do not have any of that because there is no such evidence. It doesn’t exist. They have numbers.”

This prosecutor’s argument demonstrates the importance of EJS’s goal to replace the intent standard of the Fourteenth Amendment with a disparate impact standard. Instead of having to prove intent, criminal defendants could use statistical evidence of racial bias – the “numbers” referred to by the Thompson.

From the ACLU Blog of Rights: “The Robinson decision is really the first significant win since the Supreme Court dealt a blow to fairness in the death penalty 25 years ago this Sunday, ruling in McCleskey v. Kemp that statistical evidence of systemic racial disparities could not be used to overturn death sentences because such disparities were ‘inevitable.’ Today’s decision, and the RJA itself, stand as a powerful rebuke to the Supreme Court’s defeatist view of discrimination.”

To observe this tragic anniversary of McCleskey on Sunday, April 22, the NAACP Legal Defense and Educational Fund, Inc. (LDF) and the Equal Justice Society (EJS) joined with organizations across the country – including the ACLU Capital Punishment Project, the Capital Litigation Communications Project, the Center for Death Penalty Litigation Inc., the Death Penalty Information Center, Equal Justice USA, the Innocence Project, the National Coalition to Abolish the Death Penalty and the Proteus Fund – to raise awareness of how this landmark decision fundamentally threatens equality and opportunity in this country.

Together, we launched mccleskeyvkemp.com, a website that provides information about the ongoing crisis of race in criminal justice and offers information about specific activities that individuals and organizations can take to repeal the death penalty and ameliorate the racial disparities in the criminal justice system.

The site includes publications and reports, media articles, links to take action, as well as information about the LDF/Columbia Law School Symposium, “Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp,” which was held in March of 2007 to mark the 20th anniversary of the McCleskey decision.

Join us in the effort to raise awareness of this landmark decision that every day threatens the ideals of equality and opportunity in this country. Visit mccleskeyvkemp.com to learn more.

Death Penalty Proponents Lose Another Argument

Those of us representing defendants who have killed understand the utter fallacy of the argument that the death penalty deters killing.  It is nonsensical to think that when one is suffering from whatever disturbed state of mind that leads him or her to intentionally cause another's death they carefully weigh beforehand whether to do so based on what ultimate punishment they may receive (i.e., "Yes, I will kill because the worst that could happen is I get life without parole.")

Indeed, while it has long been argued by death penalty proponents that capital punishment is necessary to deter crime, it has never been conclusively proven to have a deterrent effect.  In fact, it has long been true that the states with capital punishment also have the most crimes of violence.

Albert Camus’ essay against the death penalty, Reflections on the Guillotine (1957), includes a refutation of the deterrence argument that remains salient today.  Camus, citing an earlier study which described pickpockets plying their trade at the public hanging of other pickpockets, goes on to explain that  the complexity of human nature is not so easily controlled by law: “When law ventures, in the hope of dominating, into the dark regions of consciousness, it has little chance of being able to simplify the complexity it wants to codify.”

And now we have more proof - - or lack of proof.  As reported in the Los Angeles Times, a panel of independent experts convened by the National Research Council released a report finding that the studies on the alleged deterrent effect of the death penalty contain fundamental flaws that render them meaningless.  For example, the studies fail to consider whether other forms of punishment, such as life without parole, may also act as a deterrent. The studies don’t “consider how the capital and noncapital components of a regime combine in affecting the behavior of potential murderers.”

More fundamentally, the research underlying deterrence studies is based on the assumption that those who kill can or even try to accurately calculate their risk of being executed if they were convicted.  But, as the chairman of the committee acknowledged, "nothing is known about how potential murderers actually perceive their risk of punishment.”

It  has become increasingly clear that capital punishment is not a productive tool for fighting crime and, indeed, undermines personal and public safety by draining needed resources from more effective methods.

Many people who have devoted their lives and careers to law enforcement, public safety and victims' rights, including former San Quentin Warden Jeanne Woodford, former Los Angeles D.A. Gil Garcetti, Supervisor Ron Briggs whose family created California's death penalty law, and Don Heller, who wrote it, have come to realize that the death penalty is counterproductive, that the old arguments in favor of its continued use no longer apply, and that the time has come to replace it.

The SAFE California Act is about to qualify for the November 2012 ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Click here for more information on the SAFE California campaign and on how you can join the effort to replace the death penalty and enhance our personal and public safety.

Congress Must Act To End Prosecutorial Misconduct

By Ginny Sloan, cross-posted from Huffington Post

When federal prosecutors charged the late Senator Ted Stevens (R-AK) with failing to report more than $250,000 in illegal gifts and home renovations, they knew the stakes were sky high. Stevens, after all, was only the 11th senator in history to be indicted while in office. In 2008, the prosecutions succeeded in convincing a Washington, DC jury to convict Stevens. A month later, Stevens, the longest serving Republican senator in history, was defeated in his bid for re-election by fewer than 4,000 votes; most observers think the conviction helped to sway the election. Stevens died two years later in a plane crash.

Thanks to a two-and-a-half year independent investigation ordered by the judge in the case, Emmet Sullivan, and finally released several weeks ago, we now know how prosecutors won Stevens' conviction: they cheated. They violated his constitutional rights by intentionally concealing evidence that they knew would have supported Stevens' claim that he intended to pay for all work performed on his house. They hid documents and they allowed a cooperating witness to testify falsely to the jury. The investigators' 514-page report is a chilling reminder that not even the most powerful leaders in the nation are safe when federal prosecutors ignore their duty to seek justice, and instead pursue victory at any cost.

Sadly, the Ted Stevens case was not an isolated incident. Although the failure to disclose evidence is a constitutional violation that by its very nature often goes undiscovered (anything that the government chooses not to disclose to the defense generally remains unknown), we still know it occurs with disturbing frequency. For example, a 2010 USA Today investigation documented 86 cases since 1997 in which judges found that federal prosecutors had failed to turn over evidence that they were legally required to disclose. A number of organizations have reached similar conclusions about the frequency of these violations.

I have tremendous respect for the men and women who serve as federal prosecutors and believe that the vast majority of them act in good faith to fulfill their constitutional and legal obligations. However, it is difficult for even well-meaning prosecutors to understand what exactly those obligations entail in the face of murky rules and conflicting standards. When violations are occurring by even those prosecutors who intend to seek justice, something must be done.

Legislation offered by Senator Lisa Murkowski (R-AK) gives Congress the opportunity to address this serious problem. Senator Murkowski's "The Fairness in Disclosure of Evidence Act" is a bipartisan proposal that would require federal prosecutors to turn over to defendants all evidence favorable to their cases, and would provide appropriate penalties when they fail to do so. Passage of the bill would ensure that defendants receive all information to which they are constitutionally entitled, and would create greater consistency in federal prosecutions by eliminating jurisdictional disparities.


The Constitution Project has long been dedicated to protecting constitutional safeguards in the criminal justice system, and the Murkowski bill is an important step towards doing just that. Its safeguards are the bedrock of our system and absolutely essential in protecting the public from abuses of the government power to deprive individuals of their liberty and even their lives.

We recently released a statement from 140 criminal justice experts from across the political spectrum calling on Congress to adopt legislation to address the problem highlighted in the Stevens case -- legislation that is consistent with the Fairness in Disclosure of Evidence Act. More than 100 former federal prosecutors are among those joining the call, including: Stuart Gerson, former Acting U.S. Attorney General under President Clinton; Larry Thompson, former Deputy Attorney General during President George W. Bush's first term; former FBI Director William S. Sessions; and famous author Scott Turow.

These experts point out that federal courts, the Department of Justice and other entities have for years tried to fix the problem, only to articulate inconsistent or inadequate standards, making it difficult for individual prosecutors to determine the scope of their obligations to disclose information. The group concluded, "Only federal legislation can adequately address these continued violations by federal prosecutors, creating a uniform standard for what must be disclosed and what remedies will exist for non-disclosure, and sending a strong message to the DOJ that there will be consequences when federal prosecutors violate their discovery obligations."

Congress has the power to prevent another injustice like what happened to Senator Stevens from occurring. It should act swiftly to pass the Fairness in Disclosure of Evidence Act, creating clear standards for what information federal prosecutors are obligated to disclose to the defense and providing appropriate remedies when prosecutors fail to do so.

Virginia E. Sloan founded The Constitution Project in 1997 and is now its President and serves on its Board of Directors.  The Constitution Project is a politically independent think tank established to promote and defend constitutional safeguards. More information about the Constitution Project is available at constitutionproject.org.