Thursday, April 19, 2012

Law, Punishment, and Retribution: "The Cruel Hand"

The term "The Cruel Hand" is a phrase used by Frederick Douglass in 1853 in describing the treatment of blacks in the United States. It serves as a chapter title in Michelle Alexander’s excellent book: The New Jim Crow. Alexander devotes that section to informing us exactly what it means to be processed through our legal system and labeled guilty. She describes a system in which millions of people are pulled off the streets, tagged as criminals, and are forever condemned to second-class citizenship—analogous to the Jim Crow system in the South that insured second-class status for blacks.

"Today a criminal freed from prison has scarcely more rights, and arguably less respect, than a freed slave or a black person living ‘free’ in Mississippi at the height of Jim Crow."

"The ‘whites only’ signs may be gone, but new signs have gone up—notices placed in job applications, rental agreements, loan applications, forms for welfare benefits, school applications, and petitions for licenses, informing the general public that ‘felons’ are not wanted here. A criminal record today authorizes precisely the forms of discrimination we supposedly left behind—discrimination in employment, housing, education, public benefits, and jury service. Those labeled criminals can even be denied the right to vote."

Alexander is focused on the "War on Drugs" and the large number convicted of drug-related crimes. She provides us with data to for context.

"....more than 31 million people have been arrested for drug offenses since the drug war began."

"The vast majority of those arrested are not charged with serious offenses. In 2005, for example, four out of five drug arrests were for possession, and only one out of five was for sales. Moreover, most people in state prison for drug offenses have no history of violence or significant selling activity."

"....arrests for marijuana possession—a drug less harmful than tobacco or alcohol—accounted for nearly 80 percent of the growth in drug arrests in the 1990s."

"By the end of 2007, more than 7 million Americans—or one in every 31 adults—were behind bars, on probation, or on parole."

It is not necessary to serve time in prison in order to be labeled forever a "felon," it is the conviction that counts. Many who plead guilty to a felony charge of marijuana possession are unaware of what that admission will cost them. This quote from the American Bar Association describes the fate awaiting these individuals.

"[The] offender may be sentenced to a term of probation, community service, and court costs. Unbeknownst to this offender, and perhaps any other actor in the sentencing process, as a result of his conviction he may be ineligible for many federally funded health and welfare benefits, food stamps, public housing, and federal education assistance. His driver’s license may be automatically suspended, and he may no longer qualify for certain employment and professional licenses....He will not be permitted to enlist in the military, or possess a firearm, or obtain a federal security clearance. If a citizen, he may lose the right to vote...."

If you are hungry, you are ineligible for food stamps; if you have no place to live, you are ineligible for public housing; if you have no money, you are ineligible for welfare; if you wish to improve your education, you are ineligible for financial assistance; if you apply for a job, your record renders you unemployable.

The most surprising—and disturbing—of Alexander’s revelations is the growing practice of charging those caught up in the system with fees to cover administrative costs.

"Examples of preconviction service fees imposed throughout the United States today include jail book-in fees levied at the time of arrest, jail per diems assessed to cover the cost of pretrial detention, public defender application fees charged when someone applies for court-appointed counsel, and the bail investigation fee imposed when the court determines the likelihood of the accused appearing at trial."

"Postconviction fees include presentence report fees, public defender recoupment fees, and fees levied on convicted persons placed in a residential or work-release program."

"Upon release, even more fees may attach, including parole or probation service fees. Such fees are typically charged on a monthly basis during the period of supervision."

"Florida....has added more than twenty new categories of financial obligations for criminal defendants since 1996, while eliminating most exemptions for those who cannot pay."

These fees would be a nuisance for a wealthy person, but for someone trying to live on a poverty level income they can consume the majority of their funds. Failure to pay can have consequences up to and including going back to prison.

"Although ‘debtor’s prison’ is illegal in all states, many states use the threat of probation or parole revocation as a debt-collection tool."

Whatever happened to the concept of rehabilitation, of "having paid one’s debt to society?" And when did this "debt" become a financial one?

Retribution is an understandable part of the treatment of criminals. That is one of the explanations for prisons. But the treatment of ex-criminals goes beyond mere retribution and begins to enter the realm of "cruel and unusual punishments."

Studies indicate that the fraction of illegal drug users is roughly equal in the white and black populations, yet blacks are nine times more likely to end up going to prison for a drug-related crime. With about 9% of the population using drugs, that provides the police with about 27 million people they are supposed to arrest. Clearly, that is not possible. Therefore they have the opportunity to focus on those they believe to be the easiest targets—blacks. And they have the obligation to arrest as many as they can.

This is a form of racial discrimination. Those caught up in it are subjected to a lifetime of diminished rights as citizens. Whether or not this system has developed as a conscious attempt to deprive black people of their rights—as was the case with the old Jim Crow—is arguable. But if you are black and view a large fraction of your community being swept up and returned as second-class citizens, such disputation is probably irrelevant. The end effect is, as Alexander claims, the creation of a new Jim Crow.

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