Invisible Problems of Invisible People

Many have explored how people are made invisible. As Becky Pettit explains in Invisible Men:

“[O]ur collective blindness hinders the establishment of social facts, conceals inequality, and undermines the foundation of social science research, including that used in the design and evaluation of social policy. The decades-long expansion of the criminal justice system has led to the acute and rapid disappearance of young, low-skill African American men from portraits of the American economic, political, and social condition . While the expansion of the criminal justice system reinforces race and class inequalities in the United States, the full impact of the criminal justice system on American inequality is obscured by the continued use of data collection strategies and estimation methods that predate prison expansion.”

In the Washington Post, Jeff Guo made a similar point, including mentioning the work of Becky Pettit and Bruce Western:

“Though there are nearly 1.6 million Americans in state or federal prison, their absence is not accounted for in the figures that politicians and policymakers use to make decisions. As a result, we operate under a distorted picture of the nation’s economic health.

“There’s no simple way to estimate the impact of mass incarceration on the jobs market. But here’s a simple thought experiment. Imagine how the white and black unemployment rates would change if all the people in prison were added to the unemployment rolls.

“According to a Wonkblog analysis of government statistics, about 1.6 percent of prime-age white men (25 to 54 years old) are institutionalized. If all those 590,000 people were recognized as unemployed, the unemployment rate for prime-age white men would increase from about 5 percent to 6.4 percent.

“For prime-age black men, though, the unemployment rate would jump from 11 percent to 19 percent. That’s because a far higher fraction of black men — 7.7 percent, or 580,000 people — are institutionalized.

“Now, the racial gap starts to look like a racial chasm. (When you take into account local jails, which are not included in these statistics, the situation could be even worse.)”

It’s nice for this to get some mainstream attention. It’s much worse when one considers that some studies have found that upward of 6% of prison inmates are innocent of all criminal charges. The system is designed to force confessions through threats. And then, innocent or not, the punishment doesn’t end even after people supposedly pay for their wrongdoings by doing time—more from the article:

“One in thirteen black adults can’t vote because of their criminal records. Discrimination on the job market deepens racial inequality. Not only does a criminal record make it harder to get hired, but studies find that a criminal record is more of a handicap for black men. Employers are willing to give people second chances, but less so if they’re black.”

It’s worse still. Other studies have found that blacks with no criminal records are less likely to be interviewed and hired than whites with criminal records. Even if a black ex-con tries to turn their life around by for example getting college education, they are less likely to get interviewed and hired than a white person of equal background with only a high school diploma. Simply having a black-sounding name will decrease the chances of getting an interview at all.

This is all on top of the fact that the entire policing and legal system targets blacks. For crimes whites commit more, blacks still get arrested more and convicted more harshly.

None of this is new information. It is well known by those care to know. It has been substantiated by decades of data and research. Yet too often we act as if not only the problem doesn’t exist but that those impacted also don’t exist.

A Divide in Justice, a Divide in the Mind

I got sidetracked into reading some of Matt Taibbi’s just released new book, The Divide. A review of it in the Wall Street Journal of all places caught my attention. It was a surprisingly good, although short, review by Matt Welch. The reviewer ended with this damning conclusion:

“Though Mr. Taibbi doesn’t couch it in these terms, his warning is all about moral hazard, in two senses of the phrase. When swindlers know that their risks will be subsidized, and their potential crimes will be punishable only through negotiated corporate settlements, they will surely commit more crimes. And when most of the population either does not know or does not care that the lowest socioeconomic classes live in something akin to a police state, we should be greatly concerned for the moral health of our society.”

If that conclusion is correct and the Wall Street Journal was doing its job, that should have been front page news. Instead, I found it printed in a small corner of a back page of the newspaper. I guess one should be thankful that a review like this gets published at all in the mainstream media, however hidden away it remains.

This hiding in plain sight demonstrates a point made by Taibbi, maybe the central point of the entire book. His conclusion is that wealth disparities are causing unequal and unfair end results in the US justice system. But that is more just the ‘what’ of his argument, the evidence in support of a more probing insight. It is the ‘how’ and the ‘why’ that is the real issue of concern.

Taibbi speaks of implicit knowledge, that anyone who is paying attention knows all of this and yet it remains in the background. This is the key to understanding his argument. He introduces and emphasizes this perspective of implicit knowledge in his introduction. It appears he offers it as the foundation for building his analysis throughout the rest of the book. It is the sad fact that this knowledge is implicit, rather than explicit, that allows and encourages the growth of this divide.

Near the beginning of the introduction, he presents his case and puts it into context (Kindle Locations 67-75):

“The other thing here is an idea that being that poor means you should naturally give up any ideas you might have about privacy or dignity. The welfare applicant is less of a person for being financially dependent (and a generally unwelcome immigrant from a poor country to boot), so she naturally has fewer rights.

“No matter how offensive the image is, it has a weird logic that’s irresistible to many if not most Americans . Even if we don’t agree with it, we all get it.

“And that’s the interesting part, the part where we all get it. More and more often, we all make silent calculations about who is entitled to what rights, and who is not. It’s not as simple as saying everyone is the same under the law anymore. We all know there’s another layer to it now.”

Taibbi doesn’t pull his punches. He goes straight to the tender weak point in American pride by making a comparison to Soviet Russia (Kindle Locations 76-86):

“As a very young man, I studied the Russian language in Leningrad, in the waning days of the Soviet empire. One of the first things I noticed about that dysfunctional wreck of a lunatic country was that it had two sets of laws, one written and one unwritten. The written laws were meaningless, unless you violated one of the unwritten laws, at which point they became all-important.

“So, for instance, possessing dollars or any kind of hard currency was technically forbidden , yet I never met a Soviet citizen who didn’t have them. The state just happened to be very selective about enforcing its anticommerce laws. So the teenage farsovshik (black market trader) who sold rabbit hats in exchange for blue jeans outside my dorm could be arrested for having three dollars in his pocket, but a city official could openly walk down Nevsky Avenue with a brand-new Savile Row suit on his back, and nothing would happen.

“Everyone understood this hypocrisy implicitly, almost at a cellular level, far beneath thought. For a Russian in Soviet times, navigating every moment of citizenship involved countless silent calculations of this type. But the instant people were permitted to think about all this and question the unwritten rules out loud, it was like the whole country woke up from a dream , and the system fell apart in a matter of months . That happened before my eyes in 1990 and 1991, and I never forgot it.

“Now I feel like I’m living that process in reverse, watching my own country fall into a delusion in the same way the Soviets once woke up from one. People are beginning to become disturbingly comfortable with a kind of official hypocrisy. Bizarrely, for instance, we’ve become numb to the idea that rights aren’t absolute but are enjoyed on a kind of sliding scale.”

The example of Russia is an apt comparison. Like the Soviet Russia, the United States is in a precarious situation. We have immense power (or rather our government does) while at the same time having a population that is immensely deluded. Many American citizens have become disconnected from certain realities. Most Americans simply aren’t paying attention to what matters or not paying attention at all. But some Americans do notice, as the author acknowledges (Kindle Locations 95-101):

“This is obviously an outrage, and the few Americans who paid close attention to news stories like the deferred prosecution of HSBC for laundering drug money, or the nonprosecution of the Swiss bank UBS for fixing interest rates, were beside themselves with anger over the unfairness of it all.

“But the truly dark thing about those stories is that somewhere far beneath the intellect, on a gut level, those who were paying attention understood why those stories panned out the way they did. Just as we very quickly learned to accept the idea that America now tortures and assassinates certain foreigners (and perhaps the odd American or three) as a matter of routine, and have stopped marching on Washington to protest the fact that these things are done in our names, we’ve also learned to accept the implicit idea that some people have simply more rights than others. Some people go to jail, and others just don’t. And we all get it.”

This systemic and institutionalized injustice has become normal to us. We rarely think to even question it. Even when we do give it more than a passing thought, we typically accept it as the way the world operates, maybe inevitably. There are just those on the bottom of society as there are those at the top.

We see these problems and yet we don’t really see them. We never look at them head on. We never think about them carefully and talk about them openly. We live in social isolation and our minds are trapped within media bubbles. We don’t see the larger view (Kindle Locations 154-160):

“Most people understand this on some level, but they don’t really know how bad it has gotten, because they live entirely on one side of the equation. If you grew up well off, you probably don’t know how easy it is for poor people to end up in jail, often for the same dumb things you yourself did as a kid.

“And if you’re broke and have limited experience in the world, you probably have no idea of the sheer scale of the awesome criminal capers that the powerful and politically connected can get away with, right under the noses of the rich-people police.

“This is a story that doesn’t need to be argued . You just need to see it, and it speaks for itself. Only we’ve arranged things so that the problem is basically invisible to most people, unless you go looking for it.”

In our society, there is an implicit knowledge that is rarely ever overtly discussed publicly. I came across this same idea of implicit knowledge in a number of other books (and have written about this previously). The phrasing I kept coming across was to “know and don’t know”, a truth so dangerous that even to acknowledge it is frightening. What are we to do with such information? It makes us uncomfortable because it puts the lie to so many of our shared beliefs and assumptions, our collective self-image.

To know and not know. It is, at a fundamental level, a psychological dissociation, a splitting of the self based on a splintering of awareness. What we know in one context is separate from what we know in another context. We know and yet the full knowledge never gets our full attention, the different truths never quite connecting to help us see a greater truth that threatens our contentment and certainty.

There is a direct link between a disconnection of awareness and the social disparity of justice and wealth. The class and racial divide is part of the divide of ideological rhetoric, of political narrative, of media reporting, of public debate. There is a disconnection between what so many of us know on some level and what gets spoken in public forums and what gets implemented in public policy.

Reading a book like The Divide can be depressing. That was my initial response. The author, however, ends on a note of optimism. The divide was created and so can be changed. Going by the last examples in the book, it appears that changes are happening. “As this book goes to press,” Taibbi writes at the end of his concluding chapter (Kindle Locations 6405-6422),

“the Justice Department is sending signals that it’s beginning to realize its mistakes. Eric Holder is reportedly thinking of nominating a tough prosecutor, Leslie Caldwell, to permanently fill Lanny Breuer’s vacated post. Holder also talked about raising the statute of limitations on Wall Street cases, to give themselves another shot at all the crimes they ignored in the last five years, warning that those who committed crimes are “not out of the woods yet.” Hedge fund villain Stevie Cohen is being put out of business. As this book goes to press, criminal cases are reportedly coming against the megabank Chase for the “London Whale” episode and perhaps other misdeeds, including some related to its status as Bernie Madoff’s banker.

“At the very least, on the federal level, officials seem to recognize the political necessity of saying these things out loud, and this has to be in very large part due to the public outrage over the lack of Wall Street prosecutions. Decisions like the HSBC settlement were blunt bureaucratic calculations , where the risk of losing and/ or disrupting the economy was weighed against the benefit of receiving $ 1.9 billion in settlement money. But these new moves by Holder & Co. show that public outrage sometimes can change the calculus.

Exactly! Public outrage can make a difference. But public outrage requires public awareness. We are at an interesting moment in history that resonates with that moment when Russian society was awakening. With the rise of alternative media, Americans are becoming better informed in a way not seen before in my life.

Also, a large part of this shift comes from books like this written by Taibbi. It isn’t just the general public that is starting to question and doubt. More importantly, comfortably well-off mainstream media types such as Taibbi are beginning to look to new information and perspectives. And Taibbi isn’t alone. Many books like this one have been coming out recently and they are being read by all Americans, all across the economic spectrum:

“At the same time that Eric Holder was experimenting with a public change of mind, a federal judge named Shira Scheindlin handed down a ruling against New York’s stop-and-frisk policies. This was late in the summer of 2013. Scheindlin , among other things, cited a popular new book, The New Jim Crow, in her ruling and noted that since 2004 more blacks and Latinos have been accosted by police than actually live in the city. The ruling came at the end of a long and well-coordinated campaign by groups like the Center for Constitutional Rights and the NAACP.”

I liked the mention of Michelle Alexander’s The New Jim Crow. That is another important book. It is surprising that Taibbi only mentions it right at the end and doesn’t even include the author’s name.  Alexander’s book goes into great detail about the data of inequality and injustice. The case made in The Divide could have been strengthened by Alexander’s analysis of data.

In his very last thoughts, Taibbi makes clear the power of public pressure and the necessity of more of it:

“Of course, a federal judge striking down stop-and-frisk as unconstitutional doesn’t mean the practice will end anytime soon. “You’re not going to see any change in tactics overnight,” promised Mayor Mike Bloomberg. But the fact that Bloomberg was put in the position of having to fight back— and that his successor, Bill de Blasio, won in part by running against those tactics— shows that public pressure can work . Just trying to do the right thing legitimizes the entire system. We don’t do it often enough.”

That is where the author leaves us.

A book is just a book. A writer can’t cause change merely through the act of being published. The only influence a book has is through those who read it and by what they choose to do with what a book offers. This may just be yet another book or it may be the start of a public discussion that we’ve needed for far too long.

We are on the edge of a historical shift. No one knows where this shift might take us or how it will happen. No one knows precisely when it will happen. But, one way or another, it will happen. We are close to the tipping point. Almost anything might push our society over the edge.

An Unjust ‘Justice’ System: Victimizing the Innocent

I wrote the first post of what will eventually be part of a long series. The opening salvo was about racism without racists.

The series shall be primarily focused on violence and more generally on the corollaries of injustice, oppression and disadvantage. I’ll also include some other issues for analysis — besides race: region, culture, IQ, poverty, economic inequality, social mobility, pollution/toxins, and other environmental factors. These will be contrasted, when relevant, against genetic explanations.

I plan on being systematic about this series. I will present lots of data and analysis, lots of quotes and citations. I’m going to be thorough. Each post in this series will have a theme, a different angle on the same set of interlinked problems and issues.

However, I’m going to be busy with work for a couple of weeks and won’t be able to make much headway with this project. To offer one more taste of what I’ll be exploring further, let me share a passage from a book I’ve been reading, a book I highly recommend. The book is The New Jim Crow by Michelle Alexander. The section of the book is titled “Bad Deal”. It begins on page 87 in Chapter 2, The Lockdown.

Before I get to the passage itself, let me briefly explain why it is so significant.

One thing the author explains in this book is how little most people know about the system of police enforcement, courts and prisons. The media (news, tv shows and movies) do us a great disservice in not portraying the reality of what actually happens to people when they find themselves caught in a criminal system that seems to care little about whether you are innocent or not.

If you are poor as most are who find themselves targeted by police and prosecutors, there are few people to offer you help and guidance. Poor people certainly can’t afford lawyers and they would be naive to expect to get a lawyer offered them as happens on tv and in the movies. Most likely, you are on your own in a situation you can’t understand and no one will explain it to you. You have to make decisions that will effect your entire life with little information upon which to base that decision. The consequences are immense and, once set into motion, unalterable.

After you get a criminal record, the challenges and difficulties are numerous and diverse.

There are often severe restrictions about where you can live and with whom you can associate. Your drivers license might be revoked which makes very difficult normal life activities: shopping, taking kids to school/daycare, getting to work and keeping a job, and making the regular visits to one’s parole officer (even if you don’t have money to get on a bus because for example you can’t find or keep a job without having a car, missing a parole meeting can send you back to prison). There are expensive penalties and fees that many states demand parolees pay or else, in some cases, returning to prison.

However, at the same time it can be very hard to find a job for few employers want to hire ex-cons even if you were only convicted of a minor offense such as possessing a small amount of marijuana, and yet some states require employment as a requisite of parole. If you’re lucky to find a job, your paychecks can be garnished, sometimes almost entirely or even entirely. Furthermore, you are no longer eligible for government assistance and public housing, and so there is nothing to stop or discourage a downward economic spiral (quite the opposite actually). Under such conditions, it is easy to end up unemployed which often leads you to losing your housing and, if you become homeless, it could lead you to losing custody of your children (the most important part of many people’s live, often the one thing keeping the a struggling person from giving up entirely).

To rub salt into your wound, you may also permanently lose your right to vote and serve on juries. You will be treated like a second-class citizen. None of this would motivate and help you to rejoin normal society again. It is as if the entire world is against you. The punishment never ends. It doesn’t matter if you are innocent or not. It doesn’t matter if your crime was minor or victimless. Once assigned the status of a criminal, you are stigmatized for life. You become a part of the underclass or maybe even the permanent undercaste. Basically, your existence becomes a living hell.

Keep in mind also that most of these targeted poor people are poor minorities, mostly poor blacks. Numerous studies have shown that it is a racially biased system at every single step of the way, from policing to imprisonment. This is even worse when one considers, as the author does, how many innocent people become victimized by the very system that is supposed to protect victims. This is how families and entire communities are destroyed, many poor black communities with the vast of their male black populations (and much of their female black population as well) tangled up in the justice system or else in the school-to-prison pipeline.

To see some nice graphs, check out a previous post of mine: Prison Insanity. As violent crime has sharply decreased, the prison population has sharply increased. More specifically, even as violent crime has decreased among blacks and even though whites use and carry drugs more, the racially prejudiced War on Drugs has caused the black prison population to increase. That is an important point as the justification for imprisoning so many blacks is because of violent crime.

Without further ado, the following is the passage in question (key points in bold).

* * * *

Almost no one ever goes to trial. Nearly all criminal cases are resolved through plea bargaining— a guilty plea by the defendant in exchange for some form of leniency by the prosecutor. Though it is not widely known, the prosecutor is the most powerful law enforcement official in the criminal justice system. One might think that judges are the most powerful, or even the police, but in reality the prosecutor holds the cards. It is the prosecutor, far more than any other criminal justice official, who holds the keys to the jailhouse door.

After the police arrest someone, the prosecutor is in charge. Few rules constrain the exercise of his or her discretion. The prosecutor is free to dismiss a case for any reason or no reason at all. The prosecutor is also free to file more charges against a defendant than can realistically be proven in court, so long as probable cause arguably exists— a practice known as overcharging.

The practice of encouraging defendants to plead guilty to crimes, rather than affording them the benefit of a full trial, has always carried its risks and downsides. Never before in our history, though, have such an extraordinary number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe. When prosecutors offer “only” three years in prison when the penalties defendants could receive if they took their case to trial would be five, ten, or twenty years— or life imprisonment— only extremely courageous (or foolish) defendents turn the offer down.

The pressure to plead guilty to crimes has increased exponentially since the advent of the War on Drugs. In 1986, Congress passed The Anti-Drug Abuse Act, which established extremely long mandatory minimum prison terms for low-level drug dealing and possession of crack cocaine. The typical mandatory sentence for a first-time drug offense in federal court is five or ten years. By contrast, in other developed countries around the world, a first-time drug offense would merit no more than six months in jail, if jail time is imposed at all. 70 State legislatures were eager to jump on the “get tough” bandwagon, passing harsh drug laws, as well as “three strikes ” laws mandating a life sentence for those convicted of any third offense. These mandatory minimum statutory schemes have transferred an enormous amount of power from judges to prosecutors . Now, simply by charging someone with an offense carrying a mandatory sentence of ten to fifteen years or life, prosecutors are able to force people to plead guilty rather than risk a decade or more in prison. Prosecutors admit that they routinely charge people with crimes for which they technically have probable cause but which they seriously doubt they could ever win in court. 71 They “load up” defendants with charges that carry extremely harsh sentences in order to force them to plead guilty to lesser offenses and— here’s the kicker— to obtain testimony for a related case. Harsh sentencing laws encourage people to snitch.

The number of snitches in drug cases has soared in recent years, partly because the government has tempted people to “cooperate” with law enforcement by offering cash, putting them “on payroll,” and promising cuts of seized drug assets, but also because ratting out co-defendants, friends, family, or acquaintances is often the only way to avoid a lengthy mandatory minimum sentence. 72 In fact , under the federal sentencing guidelines, providing “substantial assistance” is often the only way defendants can hope to obtain a sentence below the mandatory minimum. The “assistance” provided by snitches is notoriously unreliable, as studies have documented countless informants who have fabricated stories about drug-related and other criminal activity in exchange for money or leniency in their pending criminal cases. 73 While such conduct is deplorable, it is not difficult to understand. Who among us would not be tempted to lie if it was the only way to avoid a forty-year sentence for a minor drug crime?

The pressure to plea-bargain and thereby “convict yourself” in exchange for some kind of leniency is not an accidental by-product of the mandatory-sentencing regime. The U.S. Sentencing Commission itself has noted that “the value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge.” Describing severe mandatory sentences as a bargaining chip is a major understatement, given its potential for extracting guilty pleas from people who are innocent of any crime.

It is impossible to know for certain how many innocent drug defendants convict themselves every year by accepting a plea bargain out of fear of mandatory sentences, or how many are convicted due to lying informants and paid witnesses, but reliable estimates of the number of innocent people currently in prison tend to range from 2 percent to 5 percent. 74 While those numbers may sound small (and probably are underestimates), they translate into thousands of innocent people who are locked up, some of whom will die in prison. In fact, if only 1 percent of America’s prisoners are actually innocent of the crimes for which they have been convicted, that would mean tens of thousands of innocent people are currently languishing behind bars in the United States.

The real point here, however, is not that innocent people are locked up. That has been true since penitentiaries first opened in America. The critical point is that thousands of people are swept into the criminal justice system every year pursuant to the drug war without much regard for their guilt or innocence. The police are allowed by the courts to conduct fishing expeditions for drugs on streets and freeways based on nothing more than a hunch. Homes may be searched for drugs based on a tip from an unreliable, confidential informant who is trading the information for money or to escape prison time. And once swept inside the system, people are often denied attorneys or meaningful representation and pressured into plea bargains by the threat of unbelievably harsh sentences— sentences for minor drug crimes that are higher than many countries impose on convicted murderers. This is the way the roundup works, and it works this way in virtually every major city in the United States.

70 Mauer, Race to Incarcerate, 35- 37.
71 See Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford University Press, 2007), 31-33.
72 See Alexandra Natapoff, “Snitching: The Institutional and Communal Consequences,” University of Cincinnati Law Review 645 (2004); and Emily Jane Dodds, “I’ll Make You a Deal: How Repeat Informants Are Corrupting the Criminal Justice System and What to Do About It,” William and Mary Law Review 50 (2008): 1063.
73 See “Riverside Drug Cases Under Review Over Use of Secret Informant,” Associated Press, Aug. 20, 2004; Ruben Narvette Jr., “Blame Stretches Far and Wide in Drug Scandal,” Dallas Morning News, Nov. 14, 2003; Rob Warden, How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row (Chicago: Northwestern University School of Law, Center for Wrongful Convictions, 2004- 5); “The Informant Trap,” National Law Journal, Mar. 6, 1995; Steven Mills and Ken Armstrong, “The Jailhouse Informant,” Chicago Tribune, Nov. 16, 1999; and Ted Rohrlich and Robert Stewart, “Jailhouse Snitches: Trading Lies for Freedom,” Los Angeles Times, Apr. 16, 1989.
74 See Adam Liptak, “Consensus on Counting the Innocent: We Can’t,” New York Times, Mar. 25, 2008; and Adam Liptak, “Study Suspects Thousands of False Confessions,” New York Times, Apr. 19, 2004.

Neuroscience, Neurolaw?

One of the panelists made a great distinction between factual knowledge and collective beliefs. He pointed out that people used to believe in phlogiston and thought it was a factual description of reality, but scientific discovery presented a better theory about chemical structure and interaction. Similarly, people once believed in souls, but psychology presented a better theory with the idea of the will. We modern people look back at the naivette and ignornace of those from centuries ago. However, isn’t the will just a modernized version of the soul? The will in some sense may be no more real than phlogiston.

Why not base our justice system on science, on real world knowledge of how people actually behave?

Of course, retribution may feel good and maybe there is something in human nature that wants retribution. But what is effective in preventing criminal behavior? Is it possible to rehabilitate people? Just imagine a society that was based on actual knowledge and understanding rather than mere ideology. Retribution has proven to be a failure and yet we continue to do it. I think it would be nice if we as a society matured to the point where we actually wanted to bring the greatest good to the greatest number.

So, are our cultural biases and our collective beliefs more important than making the world a better place?