This week: No Ray Kelly for Homeland Security, and California prison strike

A criminal justice double header this week:

In theGrio, my thoughts on why Obama should NOT tap NYPD commissioner Ray Kelly for the head of Homeland Security (hint: racial profiling).  Click HERE for more.

And in McClatchy-Tribune News Service, a look at the mass hunger strike taking place in California's prison system.  Click HERE for more.

California's Prop. 34 Will Stop the Execution of the Innocent

Proposition 34, the important ballot initiative in California, would eliminate the death penalty in that state. With 725 people on death row, including 19 women, California has the most death row prisoners in the nation, and one quarter of America's death row population. So, if the Golden State repeals its death penalty, the change would be historic, and provide an example for other states to follow.

There are many reasons to oppose the death penalty. For example, executions are barbaric, outdated, and fly in the face of international human rights law. The death penalty is expensive, provides no deterrent effect, and represents pure retribution -- a visceral bloodlust that invokes a violent American past. But most of all, the death penalty -- as practiced in California throughout the U.S. -- is irretrievably broken.

Some of the most effective spokespeople for the Yes on 34 campaign are those who have experienced the evils of the death penalty firsthand. They are five of America's 141 death row survivors, innocent people who spent an average of nearly 10 years on death row. Over the past several months, they have spoken to audiences in the Golden State about their traumatic experiences.

Wrongfully convicted, Nathson Fields spent 18 years behind bars for the 1984 double murder of rival gang members--11 of them on Illinois' death row--before he was acquitted in 2009. Fields had been the victim of lying witnesses, and corruption, graft and greed on the bench. The judge in his case had taken a $10,000 bribe from his codefendant's lawyer, and was himself imprisoned for 13 years.

An innocent man wrongfully convicted for the murder of newlyweds Dyke and Karen Rhoads, Randy Steidlspent a dozen years on death row, and another five before he became a free man. An Illinois death row survivor, Steidl had been framed by the cops and the prosecutor. And he was also the victim of poor representation, a jailhouse snitch, and witnesses who fabricated testimony. Both he and Nate Fields would become leaders to abolish capital punishment in their state in 2011.

Juan Melendez spent nearly 18 years on Florida's death row, his conviction secured by the testimony of two questionable witnesses, including a sketchy police informant who received $5,000 for his testimony, and a co-defendant who was threatened with the electric chair, but ultimately received two years probation after testifying against Melendez. Despite the serious doubts surrounding the case, the Florida Supreme Courtupheld the case three times on appeal. Meanwhile, the real killer had confessed to at least 20 people, and the transcript of the confession was discovered 16 years after Juan's death sentence.

Meanwhile, Kirk Bloodsworth was the first death row survivor in America to be exonerated through DNA. Bloodsworth spent nine years in a Maryland prison -- two on death row -- for the 1984 rape and murder of 9-year-old Dawn Hamilton. The prosecution had withheld key evidence pointing to his innocence, and police failed to inform his defense about the possibility of another suspect. Meanwhile, the real killer had been incarcerated in a cell just one floor below Kirk's, serving time for unrelated crimes. Prior to his DNA exoneration, Bloodsworth's death sentence had been commuted to two consecutive life terms. The Innocence Protection Act, passed by Congress in 2000, established the Kirk Bloodsworth Post-Conviction DNA Testing Program, which helps states defray the costs of post-conviction DNA testing.

The only woman death row exoneree, Sabrina Butler Porter spent over five years in prison, including three years awaiting her execution. A teenage mother, Butler was convicted of felony child abuse -- the unthinkable crime of murdering her infant son Walter. The baby had not been abused, and Butler had attempted CPR in an attempt to revive him. The medical examiner changed the cause of death to a kidney malady.

Given the threat of executing the innocent, California would be well served to put its death penalty system to death. Capital punishment creates innocent victims, and only perpetuates a vicious cycle of violence. Such circumstances do not make us whole as a society.

And the late Coretta Scott King -- who lost both her husband and mother-in-law to assassination -- said that "An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder."

California voters now have a golden opportunity to break the cycle of bloodlust by ending a broken criminal justice policy. Costing billions of dollars, failing to address or deter crime, and condemning innocent men and women to death, this state-sponsored vengeance simply is not worth the price.

40 years after Furman, the U.S. Death Penalty Is In Disarray

June 29 marks the 40th anniversary of the landmark Supreme Court case Furman v. Georgia.  In Furman, the high court abolished the death penalty on the grounds that it violated the Eighth Amendment prohibition on cruel and unusual punishment.  The decision also barred the use of capital punishment for rape convictions.

"The fact that the State may seek retribution against those who have broken its laws does not mean that retribution may then become the State's sole end in punishing. Our jurisprudence has always accepted deterrence in general, deterrence of individual recidivism, isolation of dangerous persons, and rehabilitation as proper goals of punishment," wrote Justice Thurgood Marshall in his concurring opinion.  "Retaliation, vengeance, and retribution have been roundly condemned as intolerable aspirations for a government in a free society."

Marshall also addressed the issue of inevitably executing the innocent.  "No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some," he noted. 

"Whether there were many is an open question made difficult by the loss of those who were most knowledgeable about the crime for which they were convicted. Surely there will be more as long as capital punishment remains part of our penal law," Justice Marshall added.

Capital punishment was reinstated with Gregg v. Georgia in 1976, but at least for several years there were no executions in the U.S.

Forty years after Furman, problems still plague the death penalty, when in reality the problems never went away.  And as long as there are executions, we'll continue to have a problem.

The writing is on the wall for those who offer to read it.  Recently the Arkansas Supreme Court struck down the death penalty law in that state, finding it is unconstitutional for the department of correction to make policy by deciding execution procedures and what lethal injection drugs to use.  Rather, it is the legislature's job to decide that, and in any case Arkansas has not executed since 2005.  Although the court did not find lethal injection or the death penalty itself unconstitutional in the 5-2 decision, state lawmakers would have to go back to the drawing board and write a new law.  Actually, they should let it go and abandon the practice altogether.    

In North Carolina, the state legislature passed a bill that would gut the Racial Justice Act.  Signed into law by Governor Bev Perdue in 2009, the Racial Justice Act allowed death row convicts to challenge their sentences on the grounds that racial bias was a significant factor in their sentencing.  The new scaling back of the law, if passed, would prohibit death row inmates from relying solely on statistics.  This would effectively remove the "racial" and "justice" components of the original law, leaving exactly what conservatives and prosecutors wanted in the first place.  And if the governor signs this regressive legislation, the Tarheel State will embrace its legacy of racial injustice, and demonstrate its failure to resist emulating its more backward neighbor to the South.   Remember that when prosecutors keep blacks off juries due to racial motivations, both white defendants and defendants of color are harmed. 

Meanwhile, in Texas, the state's Democratic Party passed a platform calling for abolition of the death penalty.  And Hank Skinner--a Texas death row inmate who was granted a stay of execution in November in order to conduct a DNA test--has been given the green light to proceed with the testing. Skinner's stay of execution came as a result of pleas from death row exonerees and abolition activists. The problem with DNA testing is that key evidence in the case is missing. How convenient.  

And how typical of Texas, where a man named Cameron Todd Willingham was executed in 2004 for the arson murder of his three young daughters -- even though many believe no arson occurred. Another man, Carlos DeLuna, was put to death for a murder another man he resembled bragged about committing.  Moreover, his innocence was proven posthumously by a Columbia law professor 23 years after the execution.

Texas is the place where an appellate judge wouldn't allow lawyers to file a last minute appeal in a death row case because 5pm was quitting time.  Judge Sharon Keller closed the court, and the condemned man Michael Wayne Richard, was executed four hours later.  Further, Kerry Max Cook, who spent years on death row and was released in a plea deal, was subjected to "egregious prosecutorial misconduct" according to an appeals court.  Now trying to clear his name, Cook is accusing the prosecutor in his case of keeping the bloody murder weapon in his home as a souvenir.  The DNA test was taken, and we await the results.   

And finally, the SAFE California Act--a ballot initiative appearing on the November ballot--would abolish capital punishment and save the state $1 billion in five years if voters.  If the measure passes, it would eliminate one-quarter of the nation's death row.

They say if it ain't broke, don't fix it.  Well, not only is the death penalty irretrievably broken, it is inherently broken.  Four decades after the Furman decision, this is as clear as ever.  Had the death penalty been a product, it would have been judged as shoddy, defective and unreliable.  It would have been recalled and removed from the shelves long ago.    

California chooses education over prisons

From theGrio:

With California a fiscal basket case, Governor Arnold Schwarzenegger recently unveiled a draconian 2010-2011 budget for his state. He hopes to close a shortfall of nearly $20 billion through $6.9 billion in federal funds and $8.5 billion in budget cuts. On the chopping block are state aid to public transportation, schools, services for immigrants, in-home care and prisoner health care. Plus more than 200,000 children will no longer be eligible for health insurance.

Part of the problem is that prison spending is too costly, unsustainable, and indefensible. In California, prisons eat up over 10 percent of the state budget, while the state's public universities are only 7 percent. And California spends $18,000 more per prisoner than the ten largest states, according to the Governor's office.

Schwarzenegger recently proposed changing the state constitution so that no less than 10 percent of the budget would be allocated for higher education, and no more than 7 percent would be spent on prisons. California has the right idea when it comes to ending its prison boom and investing more in its future. But other states should follow suit as well.

"Spending 45 percent more on prisons than universities is no way to proceed into the future," Schwarzenegger said in his January 6 State of the State speech. "What does it say about a state that focuses more on prison uniforms than caps and gowns? It simply is not healthy. I will submit to you a constitutional amendment so that never again do we spend a greater percentage of our money on prisons than on higher education."

For the Golden State-- the largest economy in America, crippled by high unemployment and the housing crisis--harsh fiscal realities are forcing lawmakers to seriously question the ways in which taxpayer funds are allocated. In many ways, California's prison problem is a profoundly American story, the culmination of years of misplaced priorities and failed policies.

Politicians, eager to please voters with a tough-on-crime stance, passed draconian laws that were popular yet made no sense. These unfair laws--with catchy names such as "Three Strikes"-- led to a swelling of the prison population, with more people behind bars and with longer sentences. Special interest groups such as the powerful California Correctional Peace Officers Association (CCPOA) have donated millions of dollars to political campaigns and successfully lobbied for stiff drug laws and longer prison terms. Prison overcrowding has become such a problem that a federal court found the conditions unconstitutional, and ordered California to cut its prison population by as many as 55,000 inmates.

The poor, African Americans and Latinos have been disproportionately affected by the prison boom. Three-quarters of incarcerated men in California are of color.

Meanwhile, California's students cannot afford to go to college. The state's public university system has suffered from budget cuts and a recent 32 percent tuition hike, which has sparked student protests.

Throughout the country, state governments are faced with a cash shortage and expensive, burgeoning prison populations. Unfortunately, desperation often serves as a factory for bad ideas. For example, Arizona is considering privatizing its 40,000 inmate prison system, including its death row. And Pennsylvania has decided to ship 2,000 prisoners to cash-needy Michigan and Virginia in February to address overcrowding issues.

But ultimately, states cannot outsource, privatize or ship all of their problems away. The answer is to develop thoughtful and effective alternatives to incarceration, decriminalize nonviolent drug offenses, and broaden opportunities for educational and economic advancement. And Black and Latino youth should have a future filled with something better than prison bars. Spending more on prisons than colleges is a recipe for disaster.

Is the Road to Prison Reform Paved with Good Intentions?

By David A. Love
Published by The Black Commentator
October 11, 2007

The nationwide problem of prison overcrowding provides a perfect opportunity for society to examine real prison reform. Exorbitant prison spending threatens to cripple state budgets, as lawmakers in many parts of the country allocate more funding to lock up their citizens than to educate them and provide them with essential services.

With over 2.2 million people incarcerated in its federal, state and local institutions, no other country imprisons as many of its people per capita - or in absolute numbers for that matter - as the United States. As a result of failed policies driven by the politics of fear and racial scapegoating - the war on drugs, tough-on-crime measures, and draconian sentencing guidelines — America's prisons are an emerging national crisis. After spending years forsaking the concept of rehabilitation in our criminal justice system, in favor of retribution for its own sake, we know that the system is overburdened and overwhelmed. And many have concluded that the old ways are not serving us well.

In California, the three-strikes rule and a powerful corrections officers' union have created a burgeoning prison population. Over 172,000 prisoners are housed in 33 facilities designed for only 100,000, costing the taxpayers more than $8 billion annually. Inmates do not receive adequate healthcare, and recidivism is high. A three-federal judge panel will determine if the California prison system requires a population cap, releasing thousands of inmates and alleviating the deplorable overcrowding.

Meanwhile, the California Department of Corrections and Rehabilitation recently announced a new policy that would free thousands of nonviolent parolees who are unlikely to re-offend. The program would remove certain parolees from supervision after six months rather than the usual three years. And ex-convicts who are no longer under the supervision of the system cannot be sent back to prison for violation of parole.

And similarly, Pennsylvania Governor Ed Rendell is proposing alternative sentencing for nonviolent drug offenders, including early release, drug treatment, and recidivism prevention programs. This, as the Keystone State faces a crisis of prison overcrowding, with a legacy of tough sentencing and life without parole that has broken up families and ravaged poor communities, yet has done nothing to address the troubling homicide rate in cities such as Philadelphia.

As the least regarded among society, prisoners are not a high priority among lawmakers and those who promulgate public policy. And many believe that prisoners deserve any punishment they receive above and beyond their prison sentence. But in order to halt the revolving door of recidivism that plagues our prison system, society must pay attention to the civil rights and quality of life of prisoners and strive to rehabilitate them.

The purging of religious and spiritual materials from prison libraries on the grounds that blocking inmates' access to such books will stem the spread of terrorism - as reported in the New York Times on September 10, 2007 - is misguided and unconstitutional. That the federal government wants to fund medical experimentation on prisoners — following a report last year by the Institute of Medicine, part of the National Academy of Sciences, which recommended a return to such practices — is unethical, unconscionable and barbaric.

Although they are deprived of their liberty, prisoners are entitled to the same basic constitutional rights we all share. However, the Prison Litigation Reform Act of 1996 (PLRA), enacted by Congress ostensibly to put an end to frivolous prison litigation, has crippled inmates' ability to seek redress and protect their rights in the federal courts. The PLRA requires:

• an exhaustion of administrative remedies
• restricts the courts' authority to provide relief when prisons violate the law
• requires that prisoners suffer a physical injury in order to recover for mental or emotional injuries
• imposes a severe cap on attorneys' fees

The PLRA is a roadblock for valid claims of prisoner abuse, and must be repealed.

And when prisoners are released, they are subjected to punishment above and beyond their original sentence. Ex-cons lose their right to vote in some states, cannot obtain licenses for certain professions, and are denied financial aid for college because they have a felony conviction. It is difficult for these individuals - predominantly of color and mostly poor, unskilled and uneducated - to rebuild their lives and support their families when society stands in their way.

America is at a crossroads on the issue of prison reform. Locking our problems away has not made society whole. The failed "law and order" stance must give way to a smarter and more thoughtful approach that examines and tackles the interrelated problems of poverty, low education, joblessness and crime. We cannot continue on a path that does not address the root causes of America's ills, fails to reduce crime, and bankrupts us - not only economically, but spiritually and socially - in the process.

Copyright © 2007 by David A. Love