Russian Hooliganism

In February, three members of Pussy Riot, Moscow's most famous (only?) feminist punk band, were arrested after they snuck into the Cathedral of Christ the Savior in order to perform in front the church's holy doors. The band later released an anti-Putin music video that featured snatches of the incident confusingly spliced with footage from another church (there are four women in the latter recording). Last Friday, those three women were convicted of hooliganism and sentenced to two years in a penal colony. There's been a great deal of commentary already, including an excellent article by Simon Jenkins in The Guardian that highlights how hypocritical Western critiques of Russian criminal justice practice are. Jenkins focuses mostly on the UK, and I thought that subjecting the USA to similar scrutiny might prove edifying.

Moscow's Cathedral of Christ the Savior. Taken from Eye Flare.

The women were charged with hooliganism: "a gross violation of the public order which expresses patent contempt for society, attended by violence against private persons or by the threat of its use, and likewise by the destruction or damage of other people's property [1]." As many observers have noted, the prosecution's account of the incident appears facially insufficient; the facts simply don't support the charge [2].

The case and its outcome were disturbing for three main reasons: (1) the weakness and corruption of Russia's judiciary, (2) the criminalization of free speech, and (3) the harshness of the sentence. These issues are not unique to Russia; they exist in the United States, too.

As noted above, the prosecution's case was facially insufficient, and yet, the judge (presumably bowing to political pressure from the Kremlin or Russian Orthodox Church) found the defendants guilty. Judges in the United States are less likely to bend the law in such an obvious way, but they are not insulated from political pressures, and often knowingly contravene statutes. Outside of the federal system, many judges are elected (in fact, 32 states elect the judges that sit on their highest court), and these elections open the door to improper influences [3].

Power is not life's only temptation; American Judges have also been seduced by money. In a recent scandal, two Luzerne County (PA) judges were found guilty of conspiring with for-profit juvenile detention centers. The judges would deny defendants counsel, find them guilty, and sentence them harshly in order to keep facility beds full [4].

Even when judges have no clear motivation, they will violate the law or interpret it incorrectly. A recent report on the Orleans Public Defenders office found that Criminal District Court judges often block a defendant's access to OPD's services if the defendant manages to make bail (i.e. the judges assume that if someone can pay bail they can afford legal services). CDC judges are also notorious for their liberal use of contempt citations; defense attorneys have been held in contempt for innocuous deeds: talking to a child witness or "asking a particular question on cross-examination [5]."

New Orleans Criminal District Court. Taken from The Lens.

America's criminal justice system also often violates the right to free speech. The Occupy Wall Street protests that began last September testify to the restrictions local governments in America place on political action. In July, the Protest and Assembly Rights Project released Suppressing Protest, an examination of ways in which political speech was silenced and punished in New York during the Occupy protests [6]. The report details (among other things) instances of unnecessary force, obstruction of the press, "baseless arrests," "closure of public spaces," and "dispersal of peaceful assemblies." Police and prosecutors in New York used broad criminal laws like disorderly conduct to chill speech. Admittedly, sentences for these violations were far more lenient than the one handed to the women of Pussy Riot (many cases were adjourned in contemplation of dismissal), but that doesn't change the fact that protesters were arrested while exercising their First Amendment rights.

Taken from ABC News.

The enactment of laws that explicitly prevent speech is an equally disturbing American trend. On August 6th, President Obama signed a new law that prohibits demonstrations within 300 feet of military funerals (the demonstrations also must be held either two hours before or after the burial). The law is designed to prevent the Westboro Baptist Church from holding their repulsive rallies - a goal with much (bipartisan!) support. It's important to understand, though, that there are - in all likelihood - a substantial number of Russians who are as disgusted by Pussy Riot's stunt as many Americans are by Westboro's hurtful tactics.

It's not only the federal government; a number of states have criminalized political speech, too. Over the last 20 years, Iowa, Kansas, Montana, North Dakota, and Utah have all enacted "Ag-gag" laws. In Kansas, Montana, and North Dakota these statutes criminalize the production and distribution of unauthorized pictures, videos, and audio recordings taken in an "animal facility [7]." In Iowa, it is a crime to fraudulently gain access to an animal facility (i.e. by lying on a job application or in a job interview) [8]. Ag-gag laws are designed to criminalize the exercise of speech. The laws explicitly prevent the production of material that will be used for political purposes, or criminalize ways in which activists gain access to animal facilities, stymieing the process by which the materials are produced.

An animal facility might allow the production and distribution of this picture. Taken from Fatback DC.

The harsh sentences handed down to the members of Pussy Riot also provoked condemnation. Two years in jail for something that (arguably) ought not to be criminalized is bad, but compare that to the sentences which result from three-strikes laws in America: 25 years to life for stealing $399 worth of golf clubs (Ewing v. California) or life imprisonment for forging a check worth $88.30 (Bordenkircher v. Hayes)[9].

The truth is that all nations have imperfect criminal justice systems. It's inspiring that injustice in Russia has spurred such close attention and strident criticism, but we must recognize that Moscow's ugliest judicial tendencies exist in America and - if we are incensed enough - work to change that.

Thanks for reading.

J







[9] In this context, it is mind-boggling to think that Anders Breivik will spend 21 years in jail for killing 77 people.

Alan Lomax at Parchman Farm

Earlier this year, much of Alan Lomax's life's work was placed online.

Lomax was one of the 20th Century's most prominent collectors of folk music. He started recording American musicians in the field with his father in 1933 for the Archive of American Folk Song at the Library of Congress. This project continued until 1942, and the material gathered over those nine years includes famous sessions with Jelly Roll Morton, Muddy Waters, Woody Guthrie, and Lead Belly. Unfortunately, those are not the recordings that are now available gratis. It turns out that the best things in life are sometimes owned by the federal government and, inexplicably, only available from small independent record labels for an extortianate sum.

In 1946, Lomax began recording on his own using tape (rather than aluminum and acetate discs), and he continued into the 1990s, traveling the world in order to preserve aural traditions. This later set of recordings, 17,400 audio files in all, is the collection that has been digitized and made available by the Association for Cultural Equity.

Alan Lomax at the 1979 Mississippi Delta Blues Festival in Greenville, Mississippi. Photo by Bill Ferris, from the William R. Ferris Collection.Taken from Field Trip South.

During 1947 and 1948, Lomax recorded the inmates on Parchman Farm. Parchman, as I've discussed below, was an infamous prison plantation. Convicts were forced to work, and the labor conditions inside the prison were largely indistinguishable from slavery. In order to pace their work, the inmates would sing. And the songs were good. Lomax observed, "I had to face that here were the people that everyone else regarded as the dregs of society, dangerous human beings, brutalized and from them came the music which I thought was the finest thing I’d ever hear coming out of my country.[1]"

While researching Parchman, I came across an album of songs from the 1947-1948 recording sessions that had been released in 1997. All of the music was wonderful, but one song haunted me: Jimpson's rendition of "No More, My Lord." Jimpson isn't exactly as well known as Lead Belly, but you may have heard his voice without realizing it. A version of "Murderer's Home," sung by Jimpson, is featured on the Gangs of New York soundtrack. To listen to any of these songs, just visit the Association for Cultural Equity's sound recording home page, and use the search bar on the right to look for music by Jimpson.

"No More, My Lord," is a fantastic song in its own right, but what I really love is a moment specific to the second recording that Lomax made. Most of the way through the two minute track, the usual axe-stroke beat is followed by syncopation: two unexpected strikes. During the song, Jimpson is actually chopping wood. The surprising percussion is a wood chip striking Lomax's microphone and rebounding off of it.

Those two small beats encapsulate, in many ways, what I love about recordings of live music. Studio albums, as sanitized as they tend to be these days, are not linked with specific times and places. In some ways, this is an advantage: a listener can, by playing an album obsessively (as I tend to do) associate the music with anything (this can lead to some odd connections; The Lord of the Rings will forever be linked with Radiohead's Amnesiac in my mind). On the other hand, live recordings, and this is particularly true of the best of them (Jimi Hendrix at the Monterey Pop Festival or The Band at Winterland in '76), evoke a specific time and place.

The wood chip striking Lomax's microphone draws the listener, however subtly, into the world of Parchman Farm, where the music is always undergirded and overshadowed by brutal force and its effects. Because Jimpson sings the blues, the disturbing power relations that form the song's context do not distract from its beauty and emotional impact; they amplify them. The pain that forms the basis for Jimpson's music - the pain that the music is meant to assuage - is, by accident, made manifest to the listener.

The other reason I love that moment is that it sounds good. That flying piece of timber may have been a mistake, but it was a felicitous mistake: the beats fit the song. I find this example of contingent beauty comforting; I hope that moments like these were plentiful at Parchman, and helped to soften the Sisyphean existences of the men who worked there.

Thanks for reading.

J

Zeitoun

 I awoke last Friday and saw this article in the NY Times.

Abdulrahman Zeitoun, hero of an eponymous book by Dave Eggers, had been arrested in New Orleans for allegedly attempting to arrange the murder of his ex-wife and two other people.

Photograph: Julie Dermansky/Polaris. Taken from The Guardian.

I'm ashamed to say that I've never read Zeitoun, despite my interest in criminal justice and the fact that I spent a year living in New Orleans. The news still shocked and fascinated me, though. More than anything, it drove home the simple point that people are complicated - a reality that our criminal justice system often ignores. Defendants are almost never permitted to present information that allows the court to consider them in toto (if such a thing is even possible). The major exception is during the mitigation phase of capital cases [1]. 

After finishing the piece, I recalled an interview I had had with the Committee for Public Counsel Services. It was spring of my senior year; I desperately wanted to be an investigator at a public defender's office, but I had absolutely no idea what I was doing. One of the attorneys interviewing me asked what should have been a softball question: why did I want to defend people? I gave some convoluted answer about fairness, the necessity of a zealous defense, and bloated prison sentences. The attorney interrupted my rambling thought with a question: did I think that good people could do bad things? It was only after I left the interview that I realized how incomplete this justification was.

In his life, Zeitoun has helped save lives and, perhaps, endangered them. What does that make him on the balance? If our actions define us, how do we balance good and bad deeds; how might we compare them? Does Zeitoun consider his own actions consistent?

If anyone wants to really delve into a mind-bending example of this sort of quandary, I'd recommend listening to the Fritz Haber section of Radiolab's The Bad Show.

Thanks for reading.

J

Brown v. Plata

In May 2011, the Supreme Court released its decision in Brown v. Plata, holding that a previously mandated population limit was necessary to remedy constitutional violations in California prisons. This was a big deal for a number of reasons, one of which was the fact that in order for California to meet the population limit, tens of thousands of prisoners would have to be released from correctional facilities. The Eighth Amendment violations at the heart of Brown v. Plata did not originally arise from overcrowding (you would be forgiven for assuming this based on the proposed remedy and the picture below). What judges in the lower courts had found cruel and unusual was the paucity of quality medical care provided in prisons. The absence of basic care was determined to be a result of overcrowding, which could only be alleviated through either the construction of new facilities or the emptying of existing ones. Hence, it was decided that inmates were to be released.

I won't really discuss any of the legal issues here; I'm sure that analysis has been done more expertly in other places.

California Institution for Men (Chino, Calif.), August 2006. Courtesy California CDCR. Taken from Prison Law Blog.

Instead, I want to highlight two small sections, one from Scalia's dissent and one from Alito's.

On the fifth page of his opinion, Scalia writes:

It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order - the 46,000 whose incarceration will be ended - do not form part of any aggrieved class even under the court's expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the gym.

Compare that with a passage from Alito's dissent:

Instead of crafting a remedy to attack the specific constitutional violations that were found - which related solely to prisoners in the two plaintiff classes - the lower court issued a decree that will at best provide only modest help to those prisoners but that is very likely to have a major and deleterious effect on public safety.

The three-judge court ordered the release of approximately 46,000 criminals - the equivalent of three army divisions [emphasis in original].

In essence, the two sections make the same point, and it is certainly a point worth making.  Scalia and Alito take issue with the remedy that the majority upholds because the people who most directly benefit from the release are not necessarily the same people who have been deprived of their constitutional rights.

What strikes me is the way in which Scalia and Alito (and their clerks) choose to make their point. They support legal arguments with unabashedly demagogic language. Alito tries to help his readers comprehend "46,000" by translating the number into army divisions. This strategy is ridiculous (can anyone but soldiers and military historians grasp what a division looks like?), and Alito's implication that criminals represent an internal enemy capable of inflicting damage comparable to that of a foreign army is equally absurd.

Scalia's description of buff convicts is more immediately visceral, freighted as it is with violent connotations. It is only upon later reflection that we might wonder what Nino himself might do if he were sentenced to a few decades in San Quentin (would he avoid the gym entirely?), or thank those fit inmates for reducing tax-payer dollars spent on prison healthcare. We ought not be concerned with the circumference of inmate biceps. If anything, we should worry about convicts' violent tendencies. It turns out that 70,906 men serving time in California have never been convicted of a violent crime. The number of inmates who must be released does not even make up two thirds of that total [1]. I hope that these numbers help Justice Scalia sleep at night.

The fact that Supreme Court Justices stoop to this level of rhetoric is disturbing. The notion that this type of emotional logic might be what inspires their rational justifications is even more unsettling.

In The Righteous Mind, Jonathan Haidt collects decades of research that demonstrate our moral reasoning is often a "post hoc fabrication" marshaled in support of our gut moral emotions. We don't necessarily use reason to arrive at a conclusion, rather, it is a way to justify our own intuitions and convince others. High school civics teachers may still cling to the belief that American courts of law function through an impartial weighing of evidence, but in reality judicial systems are permeated and heavily affected by intuitive biases [Efran, "The Effect of Physical Appearance on the Judgement of Guilt, Interpersonal Attraction, and Severity of Recommended Punishment in a Simulated Jury Task."; Mazzella and Feingold, "The Effects of Physical Attractiveness, Race, Socioeconomic Status and Gender of Defendants and Victims on Judgments of Mock Jurors: A Meta-analysis."; Stewart, "Defendant's Attractiveness as a Factor in the Outcome of Criminal trials: An Observational Study."]. Dan Kahan has also done wonderful work on the role that disgust plays in criminal law [2]. No one can definitively say what drove Scalia and Alito to dissent in Brown v. Plata, but the possibility that America's highest court reasons from intuition and not legal principles upsets me - particularly when the original intuitions are narrow and mean. I'm only speculating here, but my reflections are not entirely baseless. If Scalia and Alito did not consider emotional appeals important to their argument, why did they bother to include them in their decisions?

It saddens me to think that these two men have such dim opinions of inmates in California (all the more so because their opinions carry such staggering weight). Instead of demonizing people they know nothing about, Scalia and Alito ought to recall Phil Ochs' aphoristic refrain: "There but for fortune may go you or I."

Thanks for reading.

J

Welcome

Hi there.

Glad to see you've made your way to this little blog. I intend, at the moment, to use this website as a space to chronicle my thoughts on American criminal justice and culture (a broad topic, indeed). Initially, the page will function much like an annotated aggregator with longer ramblings interspersed. That ratio may change in the future depending on my opinion of my opinions and how much free time I have. My interest in these sorts of projects can be fickle.

The picture that heads the blog encapsulates some of the themes I'd like to explore. The photograph was taken in 1935 by a young, white woman at Parchman Farm, Mississippi's infamous prison plantation. I dug it up in the Beinecke Library senior year and have been a little obsessed with it since then. I had to crop it a bit for the website, but the basic scene is preserved. Two white prisoners stare directly into the camera. One embraces a snow woman (one can make out "her" breasts under his right arm), while a black prisoner watches on.

Photograph: Estelle Caro Eggleston

The tableau is extraordinary and captures a stunning amount of information about the culture of the time. The white men stare roguishly at the photographer - an observer can easily imagine the risque thoughts racing through their heads. They don't suffer the camera's gaze passively; they commandeer it for themselves, posing as a particular criminal archetype, one based on the joyous and pleasurable nature of transgression. The cigarette communicates this wonderfully. It wasn't until the 1930s that American society thought it acceptable for women to smoke in public [1], and so the cigarette represents a 'harmless' indulgence with a naughty connotation. I imagine that the men hope their female portraitist might view a tryst with a convict in the same light.

In contrast, the black prisoner has been cast as a janitor, an emasculating role that, particularly in the context of Parchman, recalls slavery. As I'm sure the reader (intelligent, well-read, and lovely as you must be) knows, 1935 Mississippi was not the place to toy with inter-racial romance. The inmate is wise to keep his distance from the flirtatious scene.

Cultural prejudices affected more than just individual behavior; they shaped criminal justice policy, too. One of the prevalent stereotypes about African-Americans held that they were more lustful than whites. They simply needed more sex. As ridiculous as this now sounds, it was taken seriously by the men who ran Parchman. They didn't much care for the well-being of the convicts under their supervision, but they did care about their profits. In order to get the maximal labor from black laborers, they instituted the first system of conjugal visits in America and, amazingly, it was available to only black inmates for a period of time [Oshinsky, Worse Than Slavery].

 ---

In The Prison and the American Imagination, Caleb Smith makes the argument (an argument I largely buy) that incarceration was conceived by early American penal innovators as a method for remaking the souls of convicts. This (theoretically) rehabilitative policy emerged from a particular cultural understanding of humanity. As America's cultural beliefs have changed and fragmented, criminal justice policy has changed, or been interpreted and justified in different ways. Criminals, convicts, and their portrayal in the arts and media actively affect this process. The photograph that I've chosen to highlight is a snapshot of a cultural moment, one that illuminates where we've been and elucidates themes that remain salient today (to name a few: the legacy of slavery, popular conceptions of criminality, and the politics of sight). It is a fascinating, ongoing story, a saga worth monitoring and exploring.

History, culture, sex, race, crime, punishment - what else does a good blog need? Did I mention sex?

Thanks for reading.

J