Justice in America Episode 3: Who Built Mass Incarceration? Prosecutors

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Who has had the biggest impact on the growth of our incarceration system? It’s not the judge, the jury, or the legislator. It’s not the police, and it’s certainly not the President. It’s someone else—the prosecutor. Prosecutors are getting more attention now than ever, but many people still don’t know what they do.

Prosecutors don’t just play an important role at trial. It is prosecutors who recommend what bail a judge should set, prosecutors who decide whether a person should face criminal charges and what those charges should be, and prosecutors who control the plea deal process. Perhaps more than anyone else, prosecutors are responsible for our mass incarceration epidemic. On this episode, we’ll explore the impact prosecutors have and take a look at how they wield their power.

We’ll talk about the problems with prosecutors, and their excessive power, negative incentives, and almost total lack accountability. We’ll also talk to John Pfaff, a lawyer, economist, and prosecutor expert, whose book, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform, examines the power of prosecutors.

Justice in America is available on iTunes, Soundcloud, Sticher, GooglePlay Music, and LibSyn RSS. You can also check us out on Facebook and Twitter. Our email is justiceinamerica@theappeal.org.

For more on prosecutors, check out these resources:

This week on Last Week Tonight, John Oliver coincidentally did a segment on prosecutors. Check it out here.

Here’s an op-ed in the New York Times Josie published last fall on prosecutors that pretend to be reformers but fall short.

The Brooklyn Defenders made this awesome video on the power of prosecutors last year.

Radley Balko always publishes great work on criminal justice and law enforcement, particularly prosecutors. You can find his work at the Washington Post here.

Here’s a good piece on our guest John Pfaff’s book from the Marshall Project.

The Appeal’s other podcast, also called The Appeal, had Josie on for their first episode to talk about prosecutors. Check it out here.

And of course, we publish a lot of pieces on prosecutors at The Appeal. Here are some pieces from just the past few weeks: Amanda Sakuma wrote about a primary challenge to the St. Louis County Attorney who, in 2014, chose not to charge the cop that murdered Michael Brown. (The challenger, Wesley Bell,  subsequently won.) George Joseph and Simon Davis-Cohen investigated the Bronx DA’s office and the ways they intentionally drag cases out, improperly burdening defendants; and Jessica Brand and Ethan Brown wrote about the federal prosecutors that charged over 200 inauguration day protesters for rioting, and the history of misconduct in that particular office.

Transcript By Josie Duffy Rice and Clint Smith III./TheAppeal

Posted by The NON-Conformist

 

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Rubio Defends NRA Ties, Says ‘Genie’s Out Of The Bottle’ On AR-15s

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During a tense interview aired Sunday, Sen. Marco Rubio (R-FL) again rejected many Floridians’ criticism that certain gun control laws would have prevented Wednesday’s mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida.

He also defended his ties to the National Rifle Association, and blamed congressional inaction regarding such mass shootings on “people just mov[ing] on.”

Rubio hasn’t personally attempted to address mass shootings through legislation, he said, because “we don’t fully understand everything that could’ve been done to prevent this.”

Much of the mourning following the shooting at Stoneman Douglas, which left 17 dead and more injured, transformed with surprising speed into passionate political advocacy. And, perhaps aside from President Donald Trump, more of that passion has been directed at Rubio, a large beneficiary of the gun lobby’s support, than anyone else.

“I see this reported, it’s unfair, I’ve never said we can’t do anything,” Rubio said, repeating a point he made on the Senate floor Thursday. He added: “What I have said is that the proposals out there would not have prevented it, and that’s a fact.”

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A Paranoid America Is Greatly Exaggerating Russian Power One sign of Russia’s weakness is its deepened alliance with China.

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Robert Reich — AMERICA NOW HAS 6 POLITICAL PARTIES The old…

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The old Democratic and Republican parties are exploding. When you take a closer look, America actually has six political parties right now:

1. Establishment Republicans, consisting of large corporations, Wall Street, and major GOP funders. Their goal is to have their taxes cut.

2. Anti-establishment Republicans, consisting of Tea Partiers, the Freedom Caucus, and libertarians. Their goal is to have a smaller government with shrinking deficits and debts. Many of them also want to get Big Money out of politics and end crony capitalism.

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Capitalism, the State and the Drowning of America

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As Hurricane Harvey lashed Texas, Naomi Klein wasted no time in diagnosing the “real root causes” behind the disaster, indicting “climate pollution, systemic racism, underfunding of social services, and overfunding of police.” A day after her essay appeared, George Monbiot argued that no one wants to ask the tough questions about the coastal flooding spawned during Hurricane Harvey because to do so would be to challenge capitalism—a system wedded to “perpetual growth on a finite planet”—and call into question the very foundations of “the entire political and economic system.”

Of the two choices, I vote for Monbiot’s interpretation. Nearly forty years ago, the historian Donald Worster in his classic study of one of the worst natural disasters in world history, the Dust Bowl of the 1930s, wrote that capitalism, which he understood as an economic culture founded on maximizing imperatives and a determination to treat nature as a form of capital, “has been the decisive factor in this nation’s use of nature.”

Care must be taken not to imagine capitalism as a timeless phenomenon. Capitalism has a history and that history is important if we are to properly diagnose what happened recently in Texas and is about to happen as Hurricane Irma bears down on Florida. What we need to understand is how capitalism has managed to reproduce itself since the Great Depression, but in a way that has put enormous numbers of people and tremendous amounts of property in harm’s way along the stretch from Texas to New England.

The production of risk began during the era of what is sometimes called regulated capitalism between the 1930s and the early 1970s. This form of capitalism with a “human face” involved state intervention to ensure a modicum of economic freedom but it also led the federal government to undertake sweeping efforts to control nature. The motives may well have seemed pure. But the efforts to control the natural world, though they worked in the near term, are beginning to seem inadequate to the new world we currently inhabit. The U.S. Army Corps of Engineers built reservoirs to control floods in Houston just as it built other water-control structures during the same period in New Orleans and South Florida. These sweeping water-control exploits laid the groundwork for massive real estate development in the post–World War II era.

All along the coast from Texas to New York and beyond developers plowed under wetlands to make way for more building and more impervious ground cover. But the development at the expense of marsh and water could never have happened on the scale it did without the help of the American state. Ruinous flooding of Houston in 1929 and 1935 compelled the Corps of Engineers to build the Addicks and Barker Dams. The dams combined with a massive network of channels—extending today to over 2,000 miles—to carry water off the land, and allowed Houston, which has famously eschewed zoning, to boom during the postwar era.

The same story unfolded in South Florida. A 1947 hurricane caused the worst coastal flooding in a generation and precipitated federal intervention in the form of the Central and Southern Florida Project. Again, the Corps of Engineers set to work transforming the land. Eventually a system of canals that if laid end to end would extend all the way from New York City to Las Vegas crisscrossed the southern part of the peninsula. Life for the more than five million people who live in between Orlando and Florida Bay would be unimaginable without this unparalleled exercise in the control of nature.

It is not simply that developers bulldozed wetlands with reckless abandon in the postwar period. The American state paved the way for that development by underwriting private accumulation.

Concrete was the capitalist state’s favored medium. But as the floods
mounted in the 1960s, it turned to non-structural approaches meant to keep the sea at bay. The most famous program along these lines was the National Flood Insurance Program (NFIP) established in 1968, a liberal reform that grew out of the Great Society. The idea was that the federal government would oversee a subsidized insurance program for homeowners and in return state and local municipalities would impose regulations to keep people and property out of harm’s way.

At the same time that the U.S. government launched the NFIP, a Keynesian crisis that would extend over the course of the next decade and a half began to unfold. Declining corporate profits were brought on by rising wages, mounting class conflict, escalating competition from Japan and western Europe, and increased consumer and environmental regulation. The profit squeeze combined with stagflation and widespread fiscal problems to produce major economic dislocation.

A new form of capitalism began to slowly emerge as business responded to the crisis. Major institutional change occurred in the global economy, in the relationship between capital and labor, and most important for our concerns here, in the state’s role in economic life. In the early 1970s the Business Roundtable was established as a corporate lobbying group. Among its tasks was to undermine various forms of consumer and environmental regulation.

This was the context for the assault on the liberal flood insurance program. By the 1990s, under the Clinton Administration, the pretense of regulating land use on the local level was all but dismissed in favor of a policy that simply encouraged localities to do the right thing to ensure the safety of people and property. It is not an accident that one of the worst-hit developments in Houston—southern Kingwood—was built in the last years of the twentieth century and the aughts right in the Federal Emergency Management Agency’s designated 100-year floodplain.

Nor is there anything the least bit natural in how cities in the postwar United States have functioned as profitable sites for capital accumulation. Developers have been able to derive profits from capitalist urbanization in coastal locations because of what was effectively a giant subsidy by the American state.

Flirtation with disaster is in a sense the essence of neoliberal capitalism, a hyperactive form of this exploitative economic order that seems to know no limits. Some might find comfort in the words of Alexander Cockburn: “A capitalism that thrives best on the abnormal, on disasters, is by definition in decline.”

Others, myself included, worry that the current organization of this market economy to benefit the interests of capitalists, with its blind, utopian faith in the price mechanism, is likely to head in precisely the direction that the economic historian Karl Polanyi predicted in 1944. An institutional arrangement organized around a “self-adjusting market,” he warned, “could not exist for any length of time without annihilating the human and natural substance of society; it would have physically destroyed man and transformed his surroundings into a wilderness.”

America Was Never White

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Events in Charlottesville recently cascaded into domestic terrorism. Three dead and dozens wounded as neo-Nazis, white supremacists, and other “alt-right” members descended upon the university that Thomas Jefferson built; their purpose, it is alleged, to defend a statue – a monument – to the Confederate Civil War soldier, General Robert E. Lee. These radical rightists arrived from all across the United States upon the college town of Charlottesville to protect, in their words, their “white” heritage. Among the many problems I have with so-called “white supremacists” is their purposeful mixing of “heritage” with “history,” rhetorically pining for a once proud “white” America.

But history proves that America was never white.

That I need to make this statement, and worse, that some may take offense from it, shows the blurring rhetoric between what is Heritage and what is History. I’ll return to this later. For now, some History.

The first successful colonial holding in these current United States was Spanish, at St. Augustine, Florida, established 1565, four decades plus prior to Virginia’s Jamestown.

America was never white.

Speaking of Jamestown, the first Africans were brought into Virginia on a Dutch trading ship in 1619, a year before Pilgrims landed in Plymouth Rock, Massachusetts.

America was never white.

And nearly half of those Pilgrims could not speak English. Of the near half that couldn’t, most spoke Dutch, with a scattering of German and French. America from the get go was not an English-speaking nation. When the Puritan, William Bradford, arranged the first Indian Treaty signing in 1621, it was with Massasoit, a Pokanoket of the Wampanoag Confederacy. At this time, depending on which archeologist you ask, the native population of North America was anywhere between 8 to 20 million. English speakers? Less than a thousand.

America was never white.

And it was the Dutch who seemed ascendant, as they settled New Amsterdam and the Hudson River Valley beginning in 1625. English-speaking America was in the minority of the European languages spoken by 1670. The French were firmly in place along the St. Lawrence River and the Great Lakes region, and it may come as some surprise to many Americans, but Green Bay, Wisconsin was once “La Baye des Puants” which is what the French called it when they founded “The Bay of Stinks” in 1634. Spain still reigned in Florida and along the Gulf Coast. Even the Swedes set up shop along the Delaware River taking up large swaths of what is today Delaware and Pennsylvania.

And if you were around in the mid-eighteenth century, don’t ask Benjamin Franklin about the indentured Palatines. In 1751 Franklin penned, “Observations Concerning the Increase of Mankind, Peopling of Countries, etc.” where he openly called German-speakers “swarthy” and “stupid,” that they would likely “Germanize us instead of our Anglifying them” unless there was a change to immigration policies.

Of course, one of the more famous eighteenth-century colonial wars, the French and Indian War, lasted nine years, and only after victory was secured in 1763, did English speakers become dominant among the many European powers that settled North America.

Back to Africans, according to SlaveVoyages.org, the activities of the Atlantic slave trade brought 9,507 Africans to mainland America by 1699. Over the next 75-years, or a year before the United States declared its Independence, another 220,000 were brought to slave upon the American mainland. The 1790 census (the first undertaken by the United States) proved 740,054 Africans in America, or 26.5% of the population just a year after the Constitution was ratified.

America was never white.

And the Revolutionary War was not white on white violence, or English speakers against Mother England. There was the famed Ethiopian Brigade, which General George Washington did his best to avoid. Yes, blacks fought on both sides of the war. And Crispus Attucks was black and he was the first to die at the Boston Massacre of 1770. Indians, too, fought in this war, forced to take sides by both British and colonial forces.

America was never white.

Even when the nation was young, and found a bargain from Napoleon to purchase all of Louisiana – yes, we gained the entire Mississippi River watershed, but since France had only just won Louisiana, a trophy for defeating Spain in Europe, and unable to hold on to Haiti in the Caribbean where slaves successfully rebelled, America received the Midwest which was filled with the indigenous mostly, and some Spaniards too.

America was never white.

Equally, the war of 1812, which once again pitted the United States against Britain, was not wholly a white on white conflict. Again, Native Americans took sides, the Shawnee chief Tecumseh had formed a large multi-tribal confederacy and played an enormous role in ensuring that the young United States failed at taking Canada. The great United States Navy admiral, Oliver Hazard Perry, along with Daniel Dobbins, a shipmaster, built a fleet from greenwood on Lake Erie using African Americans to build and then man the fleet. At War’s end, at the Battle of New Orleans, General Andrew Jackson’s fighting force included Choctaw Indians, and freed blacks.

America was never white.

Texas, and the Mexican-American War which followed its annexation, obviously entailed the gaining of territory inhabited by Native Americans and Hispanics. When gold was all the rage in California, the world landed upon its shores. People from Europe, South America, and yes, Asia (China, in particular) descended and many remained.

America was never white.

In military history the 54th All Black Regiment of the Civil War, the 369th Infantry known as the “The Harlem Hellfighters” in World War One, and the all-Japanese 442th Infantry during the Second World War, still – to this day – remain some of the most wartime decorated units of our country’s fighting forces.

America was never white.

Which brings us to the topic of heritage and history. For this I’ll quote famed historian David Lowenthal. Author of The Heritage Crusade and the Spoils of History, Lowenthal remarks that heritage is not history at all: “it is not an inquiry into the past, but a celebration of it … a profession of faith in a past tailored to present-day purposes.”

Monuments, under this definition, are not history. Monuments are memory-makers, celebratory edifices erected to hide History’s complexity, drown curiosity, and feed the simple in the present and in the future.

If we dig past the monuments of the Robert E. Lee’s and the Stonewall Jackson’s erected in the 1920s (Jim Crow era) or the 1950s (Civil Rights era), some in far away Arizona (Arizona achieved statehood in 1912, the Civil War ended in 1865), what we get to is a place called the past where easily traceable demographics prove a country filled with ethnicities from all over the world. What the alt-right desires is an America where whites maintain some semblance of power over anyone of color if not outright ethnic cleansing. Their rhetoric of Heritage is pure myth, a fabrication of a false past, creating memory where none existed.

America was never white, and it never will be.

By Joe Krulder, Ph.D./HistoryNewsNetwork

Posted by The NON-Conformist

Trump and America’s Fascist Forefathers

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Trump and America’s Fascist Forefathers

“If you rightly condemn Washington and Jefferson as loathsome oppressors of humanity, you are then obligated to purge the nation and world of the poisoned fruit of their racist perversion.”

Donald Trump was even more agitated and combative than usual at Tuesday’s press conference. How could he draw a line to separate the “neo-Nazis” and assorted “white supremacists” that had descended on Charlottesville, Virginia — one of whom used his car to crush the life out of a young woman — and the “very fine people” that favored keeping Robert E. Lee’s statue on its pedestal in (recently renamed) Emancipation Park? And, where would the racist-removal project end?

The answer, as somebody once said, was blowing in the wind. “So this week, it is Robert E. Lee,” warned Trump . “I noticed that Stonewall Jackson is coming down. I wonder, is it George Washington next week? And is it Thomas Jefferson the week after? You know, you really do have to ask yourself, where does it stop?”

There is nothing wrong with Trump’s logic. If the legacy of slavery is to be excised root and branch, then nothing less than the most profound social transformation is in order. Why stop with statues of long dead men? If you rightly condemn Washington and Jefferson as loathsome oppressors of humanity, you are then obligated to purge the nation and world of the poisoned fruit of their racist perversion.

What these forefathers “brought forth on this continent” was “a new nation, conceived” NOT in liberty, nor was it dedicated to the proposition that all men were created equal. According to Chief Justice Roger B. Taney’s Dred Scott decision , the United States was founded as a white man’s country in which “neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument” (the Declaration of Independence).

“The super-profits of the slave production system had made the United States a global economic power.”

In 1857, when Taney made his ruling, the value of U.S. slaves was greater than every other national asset except the land within its borders — land that was itself stolen from the indigenous peoples, and much of which would be valueless without slave labor. The super-profits of the slave production system had made the United States a global economic power, the second great industrial power on Earth — right behind Britain, where U.S. slave-produced cotton was the engine of its globalizing juggernaut. Through ruthless exploitation of captive Black bodies, writes Edward Baptist in The Half Has Never Been Told: Slavery and the Making of American Capitalism, “the United States seized control of the world market for cotton, the key raw material of the Industrial Revolution, and became a wealthy nation of global influence.”

U.S. imperialism is rooted in the rapacious expansionism of the slave system. George Washington envisioned the new nation as a “rising empire.” Jefferson spoke of an “empire of liberty” — meaning, the liberties he enjoyed from the labor (and sexual exploitation) of the slaves. White supremacy legitimized every avarice of the new nation. The Monroe Doctrine staked the exclusive U.S. claim to dominate the Western Hemisphere — regarded as populated by inferior and “mongrel” races — an “exceptionalism” Washington now insists extends to the entire planet.

“U.S. imperialism is rooted in the rapacious expansionism of the slave system.”

Fascism, including the Nazi variety, is not some strange European social disease. After crushing Black Reconstruction, the southern states invented, from the bottom up, the world’s first totally racially regimented society. U.S. “Jim Crow” inspired Adolph Hitler’s vision for nation-building under Aryan supremacy, as documented in James Q. Whitman’s recent book, Hitler’s American Model. American fascism predated — and has long outlived — the European variety. It is generally accepted that fascist states are characterized, to one degree or another, by:

  • Extreme nationalism
  • Frequent resort to mob rule
  • Oppression of an internal “Other” as an organizing principle
  • Militarism
  • The political dominance of the most reactionary elements of the bourgeoisie

All of these characteristics describe the southern states of the U.S. during the nearly century-long period between the death of Reconstruction and the triumph of the Civil Rights Movement. Moreover, the post-Reconstruction reconciliation between North and South guaranteed that the southern fascism model would leave its imprint on the larger American political economy. In the aftermath of the Sixties, the Republican section of the corporate electoral duopoly assumed the role of the White Man’s Party — the purer party of indigenous American fascism.

“American fascism predated — and has long outlived — the European variety.”

The Democratic Party, which founded this homegrown fascism, was now popularly identified as a haven for the nation’s racial and ethnic “Others.” However, the Democrats continued to pursue national reconciliation, as did the Republicans during the old Jim Crow. Even as the two parties were switching racial constituencies, they found common cause in imposing a “New” Jim Crow — the mass Black incarceration regime that spread to all parts of the country with astounding speed at the close of the Sixties, and which is the most dramatic domestic expression of American fascism. The Democrats and Republicans are as close as “lips and teeth,” as the Chinese say, when it comes to U.S. imperialism. They both belong to the War Party, committed to unfettered U.S. expansion and endless warfare against the darker peoples of the world — a national mission that began with Washington and Jefferson, and must be undone.

Donald Trump warned that, by knocking the icons off their pedestals, “You are changing history, you’re changing culture.”

Not quite – but it’s a small start.

By Glen Ford/BlackAgendaReport

Posted by The NON-Conformist

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