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dzhokhar tsarnaev
Let Prison Inmates Vote
Mass incarceration is now a bipartisan concern. Its effects on our democracy should be, too
May 15, 2019
Should Americans caught up in the justice system be stripped of their right to vote?
Senator Bernie Sanders catapulted the issue into the spotlight when he declared his unequivocal support for the voting rights of prison inmates at a recent town hall.
"I think the right to vote is inherent to our democracy," he said. "Once you start chipping away and you say, that person committed a terrible crime, not gonna let him vote... you're running down a slippery slope."
Senators Kamala Harris and Elizabeth Warren were more cautious, but didn't explicitly disagree. Former Rep. Beto O'Rourke said he was in favor of allowing "non-violent" offenders to vote while incarcerated.
South Bend, Indiana mayor Pete Buttigieg, alone among Democrats, was a hard no on any inmate voting.
Republicans, by contrast, have raised the idea of Boston Marathon bomber Dzhokhar Tsarnaev or white supremacist murderer Dylan Roof voting as a way of shooting down the entire discussion.
Of course, Tsarnaev and Roof are but two of the over 2.3 million prisoners locked up in "the land of the free." Using one or two examples to justify condemning over 2 million people is always unsound. But it's especially repulsive in this instance.
In all, 14 states and D.C. bar prisoners from voting. Twenty-two other states, to varying degrees, restrict voting during parole or probation.
Twelve more ban people with felonies from voting for a time even after their release -- and in Kentucky and Iowa, permanently. (Virginia bans them permanently too, but the state's governor has been automatically restoring voting rights to people who complete their sentences).
The impact of all this on our democracy is striking.
One in 10 Kentuckians can never vote again due to a felony conviction. For black Kentuckians, the rate of permanent felony disenfranchisement is even greater, at one in four.
It's not hard to understand why Republicans want to keep it this way. Thanks to a racially biased justice system, black and Hispanic adults are much more likely to be convicted of felonies. They're also much more likely to vote for Democrats.
Republicans know this. Just last November, a super-majority of Floridians voted to re-enfranchise 1.5 million folks with prior felony convictions -- including 1 out of 5 black Floridians. Yet before the ink could even dry, Florida's GOP-led House passed legislation restricting the measure and applying a poll tax on returning voters.
The gamesmanship gets even more perverse when you consider the Census, which counts prisoners as residents of the areas where they're confined.
That inflates the populations of Republican-leaning small towns and rural areas where most state prisons are located. That means more federal money and more legislative seats, even though the inmates can't vote for who holds them. Are you seeing the hypocrisy yet?
Forbidding inmate voting, disenfranchising them after release, and counting them as residents where they're imprisoned are all components of a terrible practice known as prison gerrymandering.
It looks and smells a lot like the 3/5 compromise -- an old constitutional practice allowing Southern states to count three-fifths of their enslaved population when apportioning House seats, Electoral College votes, and federal funding.
For too long, inmates have been an easy punching bag for politicians. Voting should be an inalienable right -- even for inmates, and especially for those who've served their time. No amount of single-case scare tactics should ruin it for the lot.
Mass incarceration is now a bipartisan concern. Its effects on our democracy should be too. And if that's a problem because it could swing a few elections, the problem isn't prisoners -- it's the system that locks up an entire voting bloc.
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'Homegrown Terrorists' Are Mostly Motivated by US Atrocities Abroad: Secret FBI Report
Secret 2012 report also finds that prison time, military service, international travel did not "significantly contribute" to radicalization
Oct 11, 2016
Anger over U.S. military operations abroad was the most commonly cited factor in motivating "homegrown terrorists," according to a secret FBI study reviewed by The Intercept on Tuesday.
The study, conducted in 2012 and titled Homegrown Violent Extremists: Survey Confirms Key Assessments, Reveals New Insights About Radicalization, also found that there was no clear path to "radicalization" and that predicting future attacks remained effectively impossible.
A unit in the FBI's counter-terrorism department interviewed agents and analysts responsible for almost 200 cases throughout the U.S. involving "homegrown violent extremists," finding that they "frequently believe the U.S. military is committing atrocities in Muslim countries, thereby justifying their violent aspirations."
The Intercept's Murtaza Hussain and Cora Currier write:
Online relationships and exposure to English-language militant propaganda and "ideologues" like Anwar al-Awlaki are also cited as "key factors" driving extremism. But grievances over U.S. military action ranked far above any other factor, turning up in 18 percent of all cases, with additional cases citing a "perceived war against Islam," "perceived discrimination," or other more specific incidents. The report notes that between 2009 and 2012, 10 out of 16 attempted or successful terrorist attacks in the United States targeted military facilities or personnel.
The results also confirm that the path to extremism is largely based on the person.
"Numerous individuals, activities, or experiences can contribute to an extremist's radicalization," the report states. "It can be difficult, if not impossible, to predict for any given individual what factor or combination of factors will prompt that individual's radicalization or mobilization to violence."
Notably, certain factors that did not "significantly contribute" to radicalization included prison time, military service, or international travel, Hussain and Currier write.
As John Mueller, a senior research scientist at Ohio State University, explained, "Insofar as there is an identifiable motivation in most of these cases it has to do with outrage over what is happening overseas."
"People read news reports about atrocities and become angry," he said. "It doesn't have to be information from a jihadist website that angers someone, it could be a New York Times report about a drone strike that kills a bunch of civilians in Afghanistan."
That aligns with some of the communications recovered from recent extremists like Ahmad Rahami, the suspect in last month's bombings in New York and New Jersey, as well as Omar Mateen, the shooter who killed 49 people in an Orlando LGBTQ nightclub in June.
Rahami cited the wars in Syria, Iraq, and Afghanistan as motivation for his attack, while Mateen told a 9-1-1 operator that he had acted in retaliation for an airstrike on an Islamic State (ISIS) fighter.
Similarly, Boston Marathon bomber Dzhokhar Tsarnaev told investigators in 2013 that the U.S. wars in Iraq and Afghanistan had motivated him and his brother Tamerlan to plant the explosives that ultimately killed three people and wounded more than 250 others.
The results contradict the preferred political and media narrative that focuses more on religion, The Intercept continues, and raises doubts that the U.S. government's recent "Countering Violent Extremism" (CVE) efforts will work. Critics have said that CVE programs, which aim to encourage communities to build "local prevention efforts," are discriminatory and stigmatize Muslim communities.
As former CIA officer Marc Sageman told The Intercept, "Politicians try very hard not to talk about foreign policy or military action being a major contributor to homegrown terrorism. [...] Continued U.S. military action will inevitably drive terrorist activities in this country, because some local people here will identify themselves with the victims of those actions abroad."
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Abrams, Bergdahl, and McCain
One man's justice is another man's injustice.
-- Ralph Waldo Emerson, Essays, First Series
December 14, 2015, was a good day for John McCain. It was a less good day for Sergeant Bowe Bergdahl, General Robert Abrams, and the military justice system. It was a middling sort of day for the U.S. Constitution, although it hadn't been directly involved except insofar as Mr. McCain showed once again that the kind of due process the Constitution contemplates can prevent desired outcomes in some criminal proceedings.
Dec 19, 2015
One man's justice is another man's injustice.
-- Ralph Waldo Emerson, Essays, First Series
December 14, 2015, was a good day for John McCain. It was a less good day for Sergeant Bowe Bergdahl, General Robert Abrams, and the military justice system. It was a middling sort of day for the U.S. Constitution, although it hadn't been directly involved except insofar as Mr. McCain showed once again that the kind of due process the Constitution contemplates can prevent desired outcomes in some criminal proceedings.
John McCain's problem with the Constitution did not start with Bowe Bergdahl. It first came to light when Dzhokhar Tsarnaev, one of the Boston Marathon Bombers, was apprehended. On April 23, 2013, eight days after the Boston bombing took place and within a few hours after Tsarnaev was captured, Senators John McCain and Lindsay Graham issued a statement that appeared on Mr. Graham's face book page in which they said, in part: "It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans. Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes. . . . The least of our worries is a criminal trial that will likely be held years from now. Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel."
Mr. McCain's next encounter with the criminal justice system occurred when Sergeant Bergdahl was returned to the United States in a prisoner exchange in which five Guantanamo prisoners were transferred to Qatar. Upon Sergeant Bergdahl's return to this country, he was charged with desertion and misbehavior before the enemy. Since he was a sergeant in the U.S. Army, he was subject to the Uniform Code of Military Justice. Those rules are designed to comport with the Constitutional rights given every citizen and set out the procedures to be followed by the military. First, the accused is subject to an Article 32 proceeding that is in the nature of a preliminary hearing. At its conclusion, the officer presiding over the Article 32 proceedings makes a recommendation to the officer responsible for convening a court martial as to the type of court martial the presiding officer believes appropriate. That officer then decides whether it is to be a General Court Martial with the possibility of a life sentence or a Special Court Martial with the maximum possible sentence of one year in prison.
Following the filing of the charges against Sergeant Bergdahl, Lt. Col. Mark Visger was appointed to conduct the Article 32 hearing. At the hearing, Major General Kenneth Dahl, the investigating officer, testified, among other things, that jail time for Sergeant Bergdahl would be inappropriate. At the end of the proceedings, Col. Visger recommended to General Robert Abrams, the officer responsible for deciding what kind of a court martial to convene, that a special court martial take place.
When news of Col. Visger's recommendation was made public, Senator McCain, who had heard none of the evidence, let it be known that military justice did not matter to him. He said that if there were no punishment for Sergeant Bergdahl, the Senate Armed Services Committee of which Senator McCain is chair, would hold its own hearing. As he explained, without waiting to find out what facts might emerge at a trial: "I am not prejudging, OK, but it is well-known that in the searches for Bergdahl, after-we know now-he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter. We need to have a hearing on that." The fact that no soldiers had been killed or wounded while searching for Sergeant Bergdahl did not faze Senator McCain.
Senator McCain's committee cannot increase whatever punishment the duly constituted court believes appropriate. But it decides on promotions and assignments for high-ranking military officers like General Robert Abrams. General Abrams is the general responsible for deciding whether to follow the recommendations of Col. Visger. John McCain and the armed services committee are the ones that can affect General Abrams' future in the military. On December 14th General Abrams announced his decision. Sergeant Bergdahl will face a general court-martial and the possibility of life in prison. That was good news for everyone except Sergeant Bergdahl and, perhaps, General Abrams. It was good news for the Armed Services Committee since it will not have to hold a hearing. It was sort of good news for General Abrams since he will not incur the wrath of Senator McCain. On the other hand, General Abrams will have to live with the fact that some people will say he decided to convene a General Court Martial because of the pressure applied by Senator McCain even though his decision may, in fact, have not been influenced by the senator's threats. It is clearly bad news for (a) Sergeant Bergdahl who may end up spending his life in prison and (b) for the military justice system that may have been compromised because of pressure applied by a senator.
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WaPo: Don't Say 'Terrorist' About 'White People Like Ourselves'
Corporate media are demonstrably reluctant to use the word "terrorist" with regards to Charleston shooting suspect Dylann Roof-even though the massacre would seem to meet the
Jun 23, 2015
Corporate media are demonstrably reluctant to use the word "terrorist" with regards to Charleston shooting suspect Dylann Roof-even though the massacre would seem to meet the legal definition of terrorism, as violent crimes that "appear to be intended...to intimidate or coerce a civilian population."
Generally, news outlets don't explain why they aren't calling Roof a terrorist suspect; they just rarely use the word. But the Washington Post's Philip Bump gave it a shot in a piece headlined "Why We Shouldn't Call Dylann Roof a Terrorist" (6/19/15), and his rationale is worth taking a look at.
Bump starts out by acknowledging that "a terroristic act, which this was, is treated and identified differently when the actor is a young white man." He contrasts the treatment of the Charleston massacre with the attack on the Mohammad cartoon contest in Texas:
In each case, someone hoping to prove a political point attacked a gathering because of who was in attendance. In the case where the only deaths were the attackers, we call it terrorism. In the case where the only deaths were the innocent people, we debate it.
"But," Bump then says, "we shouldn't call Dylann Roof a terrorist." His argument for this:
Roof wants to be a terrorist--for us to admit that he terrorized us. He likes the attention, telling the police as he admitted to his acts that he wanted to make sure they were "known."... What if we just call him a racist, grotesque person. What if we laughed at him instead of telling him he scared us?
This makes as much sense as arguing that you shouldn't charge someone with kidnapping because the person they abducted wasn't a kid. "Terrorism" is the name of a crime, and the relevant question isn't whether we like the etymology of the term, but whether the murders fit the elements of the definition--which has to do with intent to intimidate or coerce, not with whether anyone actually felt "terror."
On some level, Bump understands that "terrorism" is a legal term with serious legal consequences, and that the fact that it's unevenly applied based on the race and religion of the perpetrators is a real problem:
When Dzhokhar Tsarnaev was arrested in Boston in 2013, the debate was over how to treat him given that he was a terror suspect--as manifested by Sen. Lindsey Graham--not over whether or not he was a terror suspect. That's part of why Tsarnaev and the Texas cartoon attackers were so quickly identified as terrorists.
This, Bump notes, "reflects the same racial chasm that Roof wanted to exacerbate."
He also notes that the word has become politicized by the "War on Terror"--"which is, in essence, a war on certain groups of Middle Easterners and Muslims." As Bump observes, "Calling more non-American people terrorists also serves to bolster the arguments of those calling for more military intervention." Which leads him to conclude that "the problem...isn't that we're too slow to call Roof a terrorist. It's that we're often too quick to call everyone else a terrorist."
Yet Bump doesn't seem to have written a column about how "we're too quick to call everyone else a terrorist"; he didn't seem to have any problem referring to the Boston Marathon bombing as "terrorism," for example. ("The key component to any terrorist attack is luck" was the lead sentence for a piece he wrote on the Tsarnaev brothers, for instance--The Wire, 4/22/13.) So why write this piece, urging people to do what most journalists are already doing--avoiding saying "terrorism" in connection to Charleston?
The answer seems to be in a remarkably revealing passage in the middle of the piece, where Bump acknowledges that he identifies with Roof because they share a skin color:
Most Americans are white, and we see white people like ourselves. When I see Dylann Roof, I remember being a white male his age, barely out of my teenage years and experiencing weird anger in a difficult time.... We can identify much more easily with who he is.
Huh. You would think a self-respecting journalist, recognizing this kind of irrational bias in himself, would try to avoid letting it influence his work--would certainly not want to call for giving a criminal suspect special journalistic treatment based on this identification. Yet there's not really any other explanation offered in the column as to why it was written about Roof and not about Dzhokhar Tsarnaev.
Bump closes his column by rejecting the arguments that referring to the Charleston massacre as "racial terrorism" would "help...America come to terms with the fact that the ideology he assumed is dangerous and urgent" and put Roof in line for stiffer penalties. "Fine," he says--but
each of these is predicated on our insistence that terrorism is somehow a higher order of evil than simply murdering elderly people for being black even as they held their Bibles in a church. It implies that his mass murder was one thing, but that his scaring us was made things more problematic. Perhaps we should demonstrate to him--and every other angry young man like him--that we aren't scared of his dumb Internet rhetoric. Not in the least.
And let's reel in our use of the word "terrorism" back in.
Let me note parenthetically that the law constantly takes intent into account--it's the difference between murder and manslaughter, to name just one example--so suggesting that there's something odd about taking the intent of a murder into account is specious.
But the real debate here is not about whether terrorism is worse than mass murder with no political motive; it's whether we're going to call some acts of politically motivated murder "terrorism" while withholding that label from other murders that are equally politically motivated--when we know that this label has real consequences, legally and politically.
"We aren't scared by his dumb Internet rhetoric," says Bump. If he's still using "we" to mean "white people like ourselves," it is certainly true that whites generally don't feel personally afraid of white supremacist terrorist who target African-Americans. They're much more likely to be afraid of Muslim terrorists who target Americans in general--even though right-wing extremists (not all of whom are white supremacists, of course) killed five times as many people in this country as Muslim extremists in the decade after 9/11, according to a study from the US Military Academy (New York Times, 6/16/15).
If you really think the word "terrorism" is being used too much, you should argue against it in the cases where it's actually frequently used--which is mostly in cases involving Muslim suspects. But that would mean going against conventional wisdom, possibly with some professional cost. To argue instead that journalists are right to avoid the label with regard to a suspect with whom "we can identify much more easily"--well, there's never much of price to be paid for endorsing institutional prejudices.
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This is American Terrorism: White Supremacy's Brutal, Centuries-Long Campaign of Violence
There's a war being waged against Black Americans, whether white America wants to admit it or not
Jun 19, 2015
The evidence is clear. The reports are in. There is no other conclusion. It's 2015, and Black people in America are under a sustained and lethal terrorist attack.
In North Charleston, S.C., not too far from the place where the A.M.E. terrorist attack on 9 Black church members took place, Walter Scott was shot several times in the back as he fled from police on foot, posing no immediate threat. In Staten Island, N.Y., Eric Garner was choked to death by officers as he gasped for air, exclaiming: "I can't breathe." In Baltimore, MD, a frightened Freddie Gray fled from Brian Rice and two other white officers on foot. By the time he was placed in the police wagon, his leg had been broken. By the final time he was removed from the wagon, three of his vertebrae had been cracked and his voice box had been crushed.
In Barstow, Calif., a pregnant Black woman named Charlena Michelle Cook was viciously thrown to the ground as she screamed and pleaded, telling the officers: "Please! I'm pregnant." Recalling the incident later, Cooks stated that officers treater her "like an animal, like a monster, like I didn't exist, like I was not human." In St. Louis, Mo., protester Kristine Hendrix was walking home on the sidewalk when an officer cut off her and a male colleague and then proceeded to use a Taser on her twice as she lay on the concrete writhing and screaming in pain. She was able to capture the incident on her cellphone and the police are currently under investigation.
In the last month alone, the accounts of racial terror reports have been trickling in. We've witnessed former Officer Eric Casebolt verbally and physically attack a group of Black teenagers in McKinney, TX, forcing Black boys to lie down and then violently slamming Dejerria Becton to the ground. He then put his knee on her back, placed his weight on her body, and ignored her pleas for relief. All the while, he allowed Brandon Brooks, a white teenager, to stand and walk around freely. (Thankfully, Brandon used his privilege to film the entire incident.)
Then in Fairfield, Ohio, a whole gang of white police officers brutally accosted, pepper sprayed, choked, and slammed the family of Krystal Dixon to the ground as a young white male in his swim trunks forced his forearm onto the throat of a young Black teenage male as we was already being arrested by a white cop. A white female cop grabbed a young Black girl by the back of her neck as the other white male cops viciously manhandled other Black teenage girls, so much so that a 12-year-old has her jaw broken along with 3 ribs cracked by white Fairfield police. It ended up with a picture of a young girl in the hospital looking like this, with a solitary tear streaming down her face.
In a nation that saw 3,959 lynchings of Black people committed by an assortment of white American terrorists between 1877-1950 with no one punished for these nearly 4,000 atrocities, history reverberates through these most current traumatic incidents. This is a nation that has ignored multiple instances of mass anti-Black mob violence carried out by thousands of whites in the following cities:
- Wilmington, North Carolina (1898)
- Atlanta, Georgia (1906)
- Springfield, Illinois (1908)
- St. Louis, Missouri (1917)
- Chicago, Illinois (1919)
- Elaine, Arkansas (1919)
- Washington, DC (1919)
- Tulsa, Oklahoma (1921)
- Rosewood, Florida (1923)
This list only includes three of the 25-plus cities where Black people were met with white supremacist mob violence during the Red Summer of 1919. All told, thousands of Black lives were wiped out during these and other instances of racial cleansing. White supremacist racial cleansing destroyed intact and thriving Black communities and business districts, directly stunting Black economic growth and constraining the viability of future community health and wellness.
In a nation that witnessed the death of 4 girls and the injury of another at the 16th Street Baptist Church in Birmingham, AL, church by members of the arch-terrorist organization Ku Klux Klan, the slaughter of nine unarmed Black churchgoers at Emanuel A.M.E. Church and the assassination of Pastor and State Senator Clementa Pickney stirs up the ghosts of America's haunted past. Dylann Roof brutally murdered us as we worshipped in our sacred space. Dylann Roof butchered us as we talked with the "God of our weary years, God of our silent tears."
Meanwhile, the same media that declared a deadly shootout between biker gangs in Waco, TX, a "brawl," has labelled the murder of 9 in Charleston a "shooting." But this was no mere shooting. It was a cold-blooded, pre-meditated, white supremacist terrorist attack that ended the lives of nine unarmed Black people in the same church co-founded by the revolutionary Denmark Vesey, who sought to overthrow America's wicked regime of human bondage and chattel slavery.
The terrorist Dylann Roof has been caught, but the threat has not abated. Whether at swimming pools or churches, whether on suburban sidewalks or city streets, there is no place Black folk are safe from the police use of excessive force or guns of a white supremacist assassin. History has shown that white supremacist violence is grossly systemic and is an existential threat to Black people living in America.
We have not overcome. We are not post-racial. We are at the crossroads. The world is upside down when Dylann Storm Roof, James Eagan Holmes, and Dzhokhar Tsarnaev are captured alive while Tamir Rice, John Crawford III, and Aiyana Stanley-Jones lie in an early grave. The question now is: will white Americans confront the ideology of white supremacy and uproot it from every policy, practice, and community? Because domestic American white supremacist terrorism must end.
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Overcoming Governor's Veto, Rightwing Nebraska Ends Death Penalty
'The tidal wave of abolition is continuing to sweep over the United States, and soon the death penalty will be relegated to the history books where it belongs. Who’s next?'
May 28, 2015
Overcoming a veto by Governor Pete Ricketts, the Nebraska legislature on Wednesday voted to abolish the death penalty in the conservative midwestern state.
The move makes Nebraska the 19th in the U.S. to have imposed a ban on the practice, which opponents have long considered cruel and morally repugnant.
"Nebraska's legislature has bravely stood up for human rights by upholding this bill," said Steven W. Hawkins, executive director of Amnesty International USA. "As the nation and the world continue to abandon this broken and unjust punishment, it is only a matter of time before the 31 remaining states end the death penalty forever."
According to the Washington Post:
The narrow vote in Lincoln on Wednesday made Nebraska the first state in two years to formally abandon the death penalty, a decision that comes amid a decline in executions and roiling uncertainty regarding how to carry out lethal injections.
Gov. Pete Ricketts (R) had been a vocal critic of the bill before he vetoed it on Tuesday afternoon, calling it "cruel" to the relatives of the victims of people sentenced to death in a letter to the legislature.
The state's lawmakers voted last week to abolish the death penalty, passing the measure with enough support to override a veto that Ricketts had said was coming.
Nebraska's rejection of capital punishment is particularly striking because the state is known as very conservative and dominated by the Republican Party. As Vox.com notes:
Nebraska's conservative legislators "argued that the death penalty is a wasteful and ineffective government program that costs too much and accomplishes too little," according to Robert Dunham, the executive director of the Death Penalty Information Center. That's probably correct: because of intense and extended litigation, imposing the death penalty in the US is significantly more expensive than sentencing someone to life without parole.
This argument, along with other criticisms of the death penalty -- it's racially biased, doesn't deter crime, and executes a shocking number of innocent people -- appears to be carrying the day nationally. By 2012, prosecutors in 60 percent of American counties were no longer seeking to impose the death penalty in any circumstance. In 2014, there were the fewest number of executions in 20 years.
"What has happened in Nebraska is a microcosm of the steady national trend away from the death penalty in the United States," Dunham wrote in a statement. "Public opinion polls show that support for the death penalty is at a 40-year low nationwide."
Death penalty opponents only hope now that others will soon follow.
As Christy Hargesheimer, a Nebraska resident and the death penalty action coordinator for Amnesty, wrote in a blog post, "The tidal wave of abolition is continuing to sweep over the United States, and soon the death penalty will be relegated to the history books where it belongs. Who's next?"
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Dzhokhar Tsarnaev and the End of Innocence
Let’s fight for the right to make horrible mistakes, but remain in the realm of the living.
May 19, 2015
In the days when Boston Marathon bomber Dzhokhar Tsarnaev's jury was deliberating about whether to sentence him to life in prison or death, I thought often about members of his legal team who'd worked behind the scenes: the "mitigation specialists." I'm a colleague of these people--I belong to a small group of journalists who supplement our income with freelance "mitigation" work. That means we do a special type of investigation for death-penalty cases. Our clients are accused and often, like Tsarnaev, already convicted. The prosecution paints them to the courtroom and press as monsters.
Mitigation investigators try to de-monster the monsters. We do this mostly by talking to people who know our clients--by visiting their hometowns and even foreign homelands, their schools, churches, former workplaces, Alcoholics Anonymous meetings, and old Army buddies' houses. For one case I went to five cities and two countries, and interviewed 80 people. We dig into an entire biography, starting from childhood.
We search out hardship in early life. In death-penalty cases, this is usually like shooting into barrels of fish. Capital murder is an extreme behavioral outlier and almost always is associated with a gross inability to control one's frustration, anger, and other antisocial impulses. The problem is most often associated with conditions like intellectual disability, mental illness, exposure to environmental and workplace toxins, and substance abuse. Learning this background can liberate a jury from simplistic and legalistic notions of "guilt," toward the more complicated understanding that when terrible things happen to someone, even grotesquely violent responses are imbued with a quantum of moral innocence.
Capital defense lawyers like to hire journalists. We flesh out clinical-sounding histories with real people talking about real things. We focus on narrative; we attend legal trainings that feature workshops about Aristotelian poetics. Not only do we unearth our clients' childhood suffering, we also show how, like all humans, they tried to push back against those sufferings--tried to overcome. But they weren't so lucky.
Exposition. Rising action. A plot gone awry and a horrible climax. The denouement remains to be written. We mitigation specialists hope the poetics of our client's life will move the jury to consider their own poetics. To think, as they lie in bed at night after court: "There but for the grace of God go I. Or my child!" They might vote to kill a monster, but not a human. Mitigation narratives don't work all the time--witness what's just happened with Tsarnaev. But they work often enough, and they save lives.
As a result of this work, I see capital cases from the inside. I see privy things. Very occasionally, I see strong evidence that someone is actually innocent: they seem truly to have done no wrong. These cases underscore the State's outsized and often corrupt power, exercised though egomaniacal and dishonest district attorneys, lying cops, inept "experts." These cases have become a powerful argument against the death penalty.
But I've also seen cases in which the defendant and his lawyers have publicly claimed innocence--yet during my work I've found evidence suggesting my client is guilty. I've seen attorneys hide the "bad facts" of the case--facts, kept quiet by the defense, which suggest that my client did commit murder. These are the moments in which I question the corrosive role that "innocence" plays in criminal justice, and in our effort to reform that broken system.
Claims of innocence can be tremendously useful tools. In court they can rout a death sentence, particularly when raised on appeal to contest an execution that is imminent. Politically, innocence claims are a potent argument against capital punishment, because who, even among the most die-hard of capital punishment advocates, wants to mistakenly execute the blameless?
But innocence claims, even in far lesser crimes than murder, can be as corrosive to our struggling comprehension of humanity as is the prosecutor's rant about "monsters." Handed down in courtrooms and in the court of public opinion, a judgment of innocence gives indigent people, people of color, and immigrants the right in America to live. But the other side of the shiny coin of innocence is the crumpled currency of guilt. You're not innocent? You fucked up? Then you deserve your exile--prison for an eternity, ejection from the United States, your life injected away on a gurney. After all, you're not innocent.
* * *
Usually, my client readily admits guilt and feels terrible. Sometimes he (yes, most are men) wants to skip all the defense crap and just get convicted and die. It often falls on me to give the life pep talk. Beat the death penalty and you will be able to live in general population. You can make friends, remain in touch with your children. You can have a life behind bars. Not like outside, but still a life.
Then I go out to find the story of that life. It will be highlighted in the second part of the capital trial: the sentencing phase, where punishment is assessed. By then, guilt will have been legally established.
To give an example without invading anyone's privacy, I offer a composite case with a fictional defendant, "Donald Penny." Back when he was accused, Penny was in his 30s, a high-school dropout and unskilled, casual laborer. He used to work for Clifton Ainslee, an affluent, elderly widower, doing Ainslee's yard work and cleaning his bathrooms.
One Sunday morning Ainslee was found in his living room, knifed to death. The home was ransacked. A neighbor had earlier noticed a car driving around the place as though casing it. The neighbor jotted down the license plate. He saw the drivers' face clearly, the passenger's not so well. After he heard a scream he called 9-1-1. Police responded and found the body.
The car's owner, whom we'll call Bobby Noland, was quickly arrested. The neighbor identified him in a lineup; the dead man's engraved Rolex was found in Noland's car.
Noland told police it was his partner, Donald Penny, who did the knifing. Penny cooked up the robbery, Noland said. He wore a ski mask, but when he got into a tussle with Ainslee, the mask came off and Ainslee recognized him. Penny said he couldn't risk leaving a witness. He knifed Ainslee, then collected valuables from places that only someone familiar with the home would know.
When authorities arrested Penny they found no blood on him, none of Ainslee's belongings, no knife, no mask. The neighbor couldn't identify him in a lineup. Penny said he'd been in his own home, alone, during the murder. But he was put on trail for capital murder.
The prosecutor put on the stand an expert who said that hairs in Penny's shirt matched Ainslee's hair. The victim's grade school-aged grandchild, who'd been in another part of the house during the murder, said he saw Penny running through a room. The court-appointed defense lawyers worked for $14 an hour with almost no money for investigators. Penny was convicted and sentenced to death.
That was in the 1990s. I got involved more than a decade later, shortly before Penny's scheduled execution. A smart, passionate lawyer had taken the case pro bono and started re-investigating. He assigned me to do the mitigation work.
One of the first people I spoke with was Penny's older sister, a low-level bank manager who had lived her adult life in a different world from her brother. They'd started out in the same bleak place as children, with a severely alcoholic, bipolar mother whose abusive boyfriends drifted through the home (many beat the mother; one sexually abused the sister; another did the same to Donald).
This sister told me that whenever Donald peed in his pants, at age 5, one of their mom's boyfriends would beat him and lock him in a pitch-dark broom closet, telling him he could not come out until he stopped screaming and crying. The sister escaped the environment by spending lots of nights at a girlfriend's house. "That saved me," she said. "That, and the fact that I was bookish and knew how to act right. Not Donald." In junior high he got kicked off the football team for smoking weed, severing his relationship with the team's father-figure coach. "After that, I think Donny self-medicated with whatever was on the street. Before he got arrested he was pretty addicted to heroin. He'd stolen from my apartment to pay for it."
She vaguely remembered some counseling the family had received years earlier. I located old records and learned that before he developed his teen substance- abuse problems, Penny was a child with volatile anger who sometimes put lit matches on cats. The record noted that when he was sad during the therapy, "Donny remains completely silent and does not cry through his eyes. Instead, the tears stream from his nostrils."
The sister and I talked for three hours. It was a quiet Sunday and you could hear birds outside. "I need to get this off my chest," she finally said. "Promise it won't hurt him." She said that right after the guilty verdict, a kindly bailiff let her sit with her handcuffed brother in a little room by the courtroom. She asked Donald, "Please, just tell me. Did you do it? Kill that man?" "He said yes, he did kill Mr. Ainslee. He started crying. He didn't make any noise and the tears ran out of his nose."
I did not write this down, but I did tell the attorney. That was the last I heard of it.
* * *
The attorney discovered that, in the initial trial, the district attorney never gave Penny's lawyers police notes indicating that the grandson said he was asleep during the murder and saw and heard nothing. Revelations also emerged from the Innocence Project and the FBI about the shaky science of hair matches like the one used to convict Penny. His lawyer filed a new habeas. Racing against the death clock, he told the press Penny was actually innocent--of course, saying nothing of what I'd found in my investigation. Anti-death penalty activists amplified the innocence claim: "He's a peaceful, gentle man! He was minding his own business! He was railroaded!" Women from Germany and Holland wrote to Penny on death row. One flew in to visit. Death-penalty abolitionists arranged press conferences. Penny's conviction was overturned.
I was relieved for him, of course. I was also relieved in another case where bite-mark and shoe-print testimony, which had led to conviction, were later exposed as junk science--yet, beyond the purview of the public, the legal team's privy evidence suggested at least a modicum of guilt. I'm proud to have been on defense teams that have uncovered the terrible lack of due process to which so many people--most of them poor, damaged, and disproportionately of color--are routinely subjected. I'm proud to have kept these people alive.
Yet I'm troubled at how innocence gets fetishized in the work of criminal justice reform, and not just in the movement to end capital punishment. It has also become a fetish when young men of color, like Michael Brown, in Ferguson, are killed by police officers and by people (such as George Zimmerman) posturing as police.
Inevitably, the first hue and cry from the victim's family and community is about how innocent he was. Everyone loved him! He was attending school! He was a lamb!
Then the police leak prior charges. Marijuana, minor assault, burglary, the little convenience-store clerk shoved around. What about those shop-lifted Tiparillos?! He was waving them around on the street! As though a young man of color acting badly is, as police officer Darren Wilson put it when describing Michael Brown, the act of "a demon." Or, as prosecutors at capital trials love to say, a monster undeserving of life.
Sometimes I think of a confession, bathed in tears flowing soundlessly from the nose of a man who was forced as a boy not to cry. I think of an old man with an engraved watch and knife wounds through his head. I think of a young grandson pushed to parse a loved one's murder.
And nowadays I think of America's latest villain, the teenaged Chechen refugee in Boston, and of how his legal team gave him a life story full of moral innocence, yet a "death-qualified" jury remained unmoved. Why? Maybe chilling testimonies of suffering from the many bombing victims who survived counted for more than Tsarnaev's suffering. Or maybe big brothers in America do not have the sway over little brothers that they have elsewhere. Was the immigrant Tsarnaev's life too foreign for this country's empathy?
Who knows? All I know is that, amid the culture's obsession with vengeance, even poetics don't always work. Mitigation investigation, with its task of finding moral rather than legal blamelessness, is not the real answer, either.
"Innocence" can seem so anodyne and babyish. It's like a book in the preschooler section of Barnes & Noble: So simple as to sometimes seem deep, but shallow in the face of the awful and glorious world.
Maybe it's time to fight instead for a human right that is hardly recognized. It's the right, including for the poor, the dark-skinned, and the immigrant, to make a mistake (even one as horrible and offensive as Tsernaev's), yet remain among the humans of America. Committing a crime requires the payment of dues that, even when justly assessed, may be very dear. But payment should include the inalienable right to continue with one's life story, one's true and not always innocent story--with exile, torture, and execution banished from our complicated national biography.
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In 'Cruel and Inhuman' Verdict, Dzhokhar Tsarnaev Sentenced to Death
'The death penalty is not justice,' says Amnesty International. 'It will only compound the violence, and it will not deter others from committing similar crimes in the future.'
May 15, 2015
A federal jury sentenced Dzhokhar Tsarnaev to death on Friday. The 21-year-old was convicted last month of 30 charges stemming from his role in the Boston Marathon bombing.
The jury of seven women and five men took 14 and a half hours over three days to render its decision.
According to the Boston Globe, because he was sentenced to death, Tsarnaev will likely be brought to the federal prison at Terre Haute, Ind., where the Bureau of Prisons holds inmates on Death Row.
The Globe also notes that Tsarnaev "will likely engage in a lengthy appeals process that will mirror the complexity of his trial. He will likely appeal several of O'Toole's decisions in the case, including the judge's refusal to relocate the trial to a court outside Boston."
In the wake of the decision, groups opposed to capital punishment voiced disappointment.
The ACLU of Massachusetts said in a statement:
Today's verdict does not reflect the values of the majority of people in our Commonwealth. The ACLU of Massachusetts has been disappointed from the start that the federal government sought the death penalty in Massachusetts, which has rejected capital punishment. The last execution in the state of Massachusetts took place in 1947. Even in this case, Massachusetts opposition to the death penalty has been reflected in public opinion polls, in the pleas of religious leaders, and in statements by victims' families and survivors. In a Boston Globe poll conducted this April, Massachusetts residents--by a four-to-one margin--overwhelmingly opposed the imposition of a death sentence for Dzhokhar Tsarnaev. Massachusetts religious leaders voiced their opposition to seeking his execution. Victims' families and survivors in this case asked that federal prosecutors take the death penalty off the table and, instead, accept a sentence of life in exchange for no possibility of appeal or parole. This verdict is an outlier, and does not change the fact that Americans increasingly reject capital punishment.
And Steven Hawkins, executive director of Amnesty International USA, declared:
We condemn the bombings that took place in Boston two years ago, and we mourn the loss of life and grave injuries they caused. The death penalty, however, is not justice. It will only compound the violence, and it will not deter others from committing similar crimes in the future.
It is outrageous that the federal government imposes this cruel and inhuman punishment, particularly when the people of Massachusetts have abolished it in their state. As death sentences decline worldwide, no government can claim to be a leader in human rights when it sentences its prisoners to death.
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What Explains the Power of Dzhokhar Tsarnaev's Middle Finger?
The penalty phase of Dzhokhar Tsarnaev's trial began Tuesday in a federal courtroom in Boston. Already convicted of 30 felony counts relating to the 2013 bombing of the Boston Marathon, an attack that killed 3 people and maimed dozens more, the 21-year-old will now have the jury effectively decide whether he should spend the rest of his life in a maximum security prison without the possibility of parole, or be executed.
Apr 23, 2015
The penalty phase of Dzhokhar Tsarnaev's trial began Tuesday in a federal courtroom in Boston. Already convicted of 30 felony counts relating to the 2013 bombing of the Boston Marathon, an attack that killed 3 people and maimed dozens more, the 21-year-old will now have the jury effectively decide whether he should spend the rest of his life in a maximum security prison without the possibility of parole, or be executed. Federal prosecutors are vehemently arguing for the death penalty.
Paying even casual attention to media coverage of yesterday's proceedings was surreal. What dominated headlines and journalists' commentary was the above still photograph of Tsarnaev, taken by prison authorities in July 2013 (roughly three months after the bombing), as he waited alone for hours in a holding cell.
The photo captured the then-teenager extending his middle finger up -- flipping a bird, as they say -- to the surveillance camera in his cell. The graininess of the photo, and the proximity of his face to the lens, created an image at once menacing and dehumanizing: this encaged, orange jumpsuit-clad monster was in your face, full of unbridled rage and hatred directed right at you. The photo was used to show that, even three months after committing such an atrocity, he lacked any remorse or other redemptive human emotions.
[...]
There are reasons the U.S. is the world's largest penal state, and among its most oppressive, and those reasons reside in the political and cultural character of the country, and specifically in its desire to impose maximum amounts of pain and suffering under the guise of justice. That's why even opponents of the death penalty frequently argue that life in prison is worse: it's always a contest as to how the most suffering can be inflicted.
Tsarnaev's middle finger provoked seemingly as much disgust as the murders for which he has been convicted because it represented his refusal to submissively play the role assigned to those who are to be punished. The gesture is depicted as a challenge to -- a "defiance" of, as CNN put it -- proper authority, a crime worse than any murders. As the media tale tells it: rather than prostrating himself before us all and the mighty judicial system we've created to justify our imposition of suffering, he's expressing anger over it, a contempt for it. He's thus depriving us of the satisfaction and self-validation we crave, and for that he must be punished even further: with death.
Read the full article at The Intercept.
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Sen. Warren Opposes Death Penalty for Convicted Boston Bomber
Though Massachusetts, where both the crimes and trial took place, does not have the death penalty, the federal charges under which Dzhokhar Tsarnaev was convicted allow for it.
Apr 10, 2015
Despite the in-state and national vitriol aimed at the recently convicted Boston Marathon bomber Dzhokhar Tsarnaev, Sen. Elizabeth Warren (D-Mass.) on Thursday made it clear her opposition to the death penalty is not selective.
"You know, my heart goes out to the families here, but I don't support the death penalty," Warren said when asked about the case on CBS This Morning. "I think that he should spend his life in jail. No possibility of parole; he should die in prison." What is most important, she said, is that the families "have a chance to heal" from the criminal attack that claimed three lives and left hundreds of others injured.
Watch:
Convicted on Wednesday of all counts related to the 2013 bombing near the finish-line of the Boston Marathon, the jury is now considering whether or not Tsarnaev should receive life in prison or be executed. Though Massachusetts, where the crimes and the trial both took place, does not have the death penalty, the federal charges for which Tsarnaev was convicted do allow for it.
As the Boston Globe reports, opposition to the death penalty remains the majority opinion in the state, even in a case that has drawn such national and international attention:
A WBUR poll of 504 Boston area residents last month found 49 percent believe Tsarnaev should be sentenced to life, while 38 percent say he should get the death penalty. Among a subset of 227 voters in Boston proper, the split was even wider, with 62 percent favoring life in prison and 27 percent preferring a death sentence.
US Representative Michael Capuano, a Somerville Democrat, said he opposes the death penalty. And he suggested a life sentence would be a worse punishment. "Imposing it won't undo the death and destruction Tsarnaev caused two years ago," he said. "The defendant has expressed a wish to die a martyr. I prefer that he have many years to reflect on his crimes."
US Representative James P. McGovern, a Worcester Democrat, and Representative Joseph P. Kennedy III, a Brookline Democrat, both voiced opposition to the death penalty Thursday and said Tsarnaev should remain in jail for the rest of his life. Richard Neal, a Springfield Democrat, said he is opposed to the death penalty.
Representative Seth W. Moulton, a Salem Democrat opposed to the death penalty, said the Marathon bomber deserves a "severe sentence." Representative Katherine Clark, a Melrose Democrat, said she remains opposed to the death penalty "even in this horrific case."
In her column this week, Democracy Now! host Amy Goodman highlighted how the Tsarnaev case "provides a new reason to take a hard look at capital punishment" in the United States.
According to Goodman, the death penalty in the U.S. has a troubling history of wrongful convictions and racial disparity. In addition to the many "legal, ethical, racial and economic-injustice arguments" against capital punishment, she also points to "practical considerations"--like cost, human fallibility, and growing concern about lethal injection cocktails--as reasons why the "irreversible" punishment of the death penalty should be banned once and for all.
On Thursday's Democracy Now!, Goodman and her co-host Juan Gonzalez interviewed James Rooney, president of Massachusetts Citizens Against the Death Penalty, and asked him for his thoughts about Tsarnaev's conviction as well as the history and current state of the death penalty both in Massachusetts and across the country. Watch:
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