Convicting the Innocent

United States v. Criminal Justice

KALIEF BROWDER SPENT three years in New York’s City’s Rikers Island jail although he was never sentenced to serve time. He was never convicted of a crime; he was never even tried in a court of law. Yet, make no mistake: Kalief Browder was executed by the state, as surely as if a stream of drugs had been spewed into his veins or if he had been burned to death strapped to a chair that served only that purpose. And he never was granted the opportunity to offer a defense and be judged by a jury.

Starting in 2010, at age sixteen, Browder spent those three years in what many consider to be the toughest, most corrupt penal institution in the jurisdiction. He was awaiting trial for stealing a backpack, a charge he continued to deny. Two of those years were spent in solitary confinement, a practice that, along with capital punishment, appears to be losing favor with the public as well as with members of the judiciary. Prisoners in solitary are isolated from the general population. They are held for twenty-three hours a day in windowless cells as small as six-by-nine feet. New York City Mayor Bill de Blasio has since banned the use of solitary for prisoners under the age of eighteen. But it came too late for Browder.

Browder’s case came to light in October 2014, following an article in The New Yorker by Jennifer Gonnerman. Browder told her that he was repeatedly beaten by correction officers and abused by fellow inmates. He attempted to commit suicide on several occasions. By 2013, prosecutors had lost touch with the only witness against him. They dropped all charges and Browder was released. He moved back into his parents’ house not far from the Bronx Zoo and tried putting his life back together. He earned a high school equivalency diploma and began attending community college.

But the specter of his years spent in solitary confinement continued to haunt him. According to Gonnerman, as reported by Michael Schwirtz and Michael Winerip in The New York Times, once home, “he almost recreated the conditions of solitary,” shutting himself in his bedroom for long periods of time. He was very uncomfortable being around people, especially in large groups. He grew increasingly paranoid. He threw out his television because he feared he was being watched. In December 2014, he was hospitalized on a psychiatric ward at Harlem Hospital Center. Back home, his condition worsened. On Saturday, June 6, 2015, Browder hanged himself. He pushed an air-conditioning unit out of a second-story window in his parents’ apartment, wrapped a cord around his neck, and pushed himself out feet-first. His mother heard a noise, went outside and saw her youngest child hanging limply alongside the wall of the building. Kalief Browder was twenty-two years old.

Browder’s story was not entirely unique. He languished in jail on a minor charge because he could not come up with the relatively modest bail of $3,000. According to a report by the Vera Institute of Justice, about half the people in New York City’s jails are being held on $2,500 bail or less, most of them for misdemeanors. The ostensible purpose of bail is to ensure that the defendant would remain in place and not disappear before he is tried. At age sixteen and in circumstances approaching poverty, Browder did not appear to be a high risk to flee to a far-off sanctuary.

If Browder’s confinement suggests a malfunction in the legal system, one might consider the extended period for which he was held. The speedy-trial laws require that a defendant must be tried within six months of arrest or be released from custody. But, as pointed out by Times columnist Jim Dwyer, “the courts use a special kind of arithmetic that allocates blame for the delay; the calendars ordinarily used by humans to measure the passage of time are of no relevance. So after three years at Rikers Island, Kalief Browder still had not reached the six-month deadline.”

Upon such random intricacies are lives damaged or lost. It has become the fashion for traditionally law-and-order politicians and ranking members of the judicial hierarchy to describe the criminal justice system in the United States as “broken.” It is a convenient term but a far too modest assessment of the truth. To state the facts baldly, America’s system of criminal justice is unjust, inefficient, racist, and corrupt at its core. It is a blight on the national conscience that begins with the practice of capital punishment. The uneasy truth is that the United States remains the only industrialized country in the West that still carries out state executions, and at a rate that places it in company with China and a handful of authoritarian regimes in the Middle East such as Iran and Saudi Arabia.

Nonetheless, the taste for the death penalty has diminished in recent years. The annual survey by the Death Penalty Information Center (DPIC) found that twenty-eight people were executed in 2015, seven fewer than the previous year. The number has been declining steadily since 1999 when there were ninety-eight executions. Only six states carried out executions in 2015, led by thirteen in Texas, six in Missouri, and five in Georgia. Florida had two and Oklahoma and Virginia, one each. The number of death sentences also has been dropping sharply. The forty-nine handed down in 2015 were twenty-three fewer than the previous year, which was the lowest number in the modern era of capital punishment, dating back to 1974. All told, death sentences have declined by nearly 80 percent since 1996.

The growing distaste for the death penalty is due largely to the advent of DNA testing and the diligent work of organizations like the Innocence Project. The startlingly large number of death row exonerations—154 between 1973 and June 2015—brought attention to the fallibility of a system that was sending innocent people to the death chamber. A 2014 study by the National Academy of Sciences estimated that 4.1 percent of death-row defendants are wrongfully convicted. It is not possible to know how many of them were executed but estimates run as high as 10 percent.

All available statistics suggest that the death penalty simply does not work. It is not a deterrent and serves no useful purpose. Every year since 1991, states without capital punishment had consistently lower murder rates than those with the death penalty. Still, despite the evidence of its ineffectiveness and its apparent loss of favor, it continues to mar an already tarnished criminal justice system. As of April 2015, there were 3,002 prisoners awaiting their fate on death row. Only a small fraction of them will be executed. The numbers in that regard are staggering. The average resident of death row will spend more than eleven years in solitary confinement before he is either executed or set free. Since 1973, the beginning of the modern era of capital punishment, the most likely outcome of a death sentence is that it will be overturned. Of the 8,466 death sentences handed down since 1973, only 1,359—about 16 percent—were carried out. Almost three times the number of those sentenced to death will see their sentences overturned on appeal or reduced to a lesser penalty than will be executed. Of the 8,466 convicts condemned to die since 1973, 3,194 had their sentences overturned on appeal; 509 died on death row from suicide or other causes; 392 saw their sentences commuted by the governor to life in prison; 33 were removed from death row for other reasons; 2, 979 were still on death row as of the start of 2014; 1,359 were executed.

The statistics reflect the public’s growing dissatisfaction with the death penalty. It has become increasingly clear that it serves little purpose while the possibility of error is greater than conscience might allow. A 2015 poll by the Pew Research Center found that 56 percent of Americans still favor capital punishment for those convicted of murder, a decrease of 6 percent since 2011. Throughout the 1980s and 1990s, support for the death penalty often exceeded 70 percent. In 1996, 78 percent of the public favored it while only 18 percent opposed it. In the latest Pew poll, 38 percent opposed it.

Unfortunately, the Supreme Court is often a decade or two behind the public on such issues, and the only realistic way to abolish capital punishment nationally would be for the US Supreme Court to rule it a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. While over the years the Court has voted to continue the practice of capital punishment in one form or another, it is not altogether unthinkable that, given the right case and favorable circumstances, it might vote in favor of abolition. In 2015, the Roberts Court seemed to suggest that the nation’s entire criminal justice system should come under closer scrutiny.

It is not unusual for Supreme Court justices to recalculate their views on constitutional issues that tweak the conscience while on the Court or even in retirement. Such was the case with three justices—John Paul Stevens, Lewis Powell, and Harry Blackmun—who had cast key votes to maintain capital punishment while they were on the bench but reconsidered years later, each supporting its abolition. It is conceivable that Kennedy might do likewise. The four justices on the 2015 court who oppose the death penalty appear to be taking a more vigorous approach in their position. In a case that closed out the term in a flurry of critical decisions in its last few days—some of them surprising in their turn to the left—the Court approved the use of an execution drug used in Oklahoma. Kennedy supplied the deciding vote in a 5-4 decision, but that case was decided on extremely narrow grounds—whether the use of the drug midazolam was likely to cause excruciating pain. The dissent, written by Justice Sonia Sotomayor, offered a sharp criticism of the Court’s opinion, but Justices Stephen P. Breyer and Ruth Bader Ginsburg delivered a more sweeping, detailed dissent that indicated they were ready to put the very concept of capital punishment on trial.

As reported by Adam Liptak in The New York Times, Breyer wrote, “Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” In a forty-six-page dissent that included charts and maps, he said, “it is highly likely that the death penalty violates the Eighth Amendment.” He said there was evidence that innocent people have been executed, that death-row exonerations were frequent, that death sentences were imposed arbitrarily, and that the capital justice system was warped by racial discrimination and politics. He further noted that there was little reason to believe that the death penalty deterred crime and that long delays between death sentences and executions might themselves violate the Eighth Amendment.

Not surprisingly, Justice Scalia, waddling about in an antediluvian stupor, called Breyer’s critique “gobbledygook,” which was more coherent than the rest of his argument. He explained that the death penalty is “contemplated” by the Constitution, and complained that it is not carried out quickly enough. By way of illustration, he absurdly said that the situation “calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan.”

Scalia, who seems to believe that time stopped at the precise moment when the ink on the Constitution dried, considers himself to be an advocate of “original intent,” a doctrine that contends that the words, as written at the time, are sacred and are to be followed explicitly without regard to progress or change. Joseph J. Ellis, a noted historian of the Revolutionary period and author, most recently, of The Quartet, responds to that argument with words from Thomas Jefferson himself:

“Some men look at constitutions with sanctimonious reverence and deem them, like the Ark of the Covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human …

“But I know also, that laws and institutions must go hand in hand with the progress of the human mind.”

Yet, even Scalia, as staunch an advocate of capital punishment as one might find, has conceded that its days might be numbered. Addressing the subject at the University of Minnesota Law School in October 2015, he noted that recent decisions by the Court have made it “practically impossible to impose it.” He went on to say that “it wouldn’t surprise me” if the Court would one day declare it to be unconstitutional, but made it clear that such a decision would have to come without his support. He described the Constitution as an “enduring” document that should not be open to interpretation, expressing his displeasure that some of his colleagues deemed it to be flexible.

As hard-line as he is on the criminal justice system, Scalia has made clear his outrage at the length of time some prisoners spend on death row before their cases wind down to conclusion. “How has it gone on this long?” he asked a lawyer for the state of Florida when he learned that Freddie Lee Hall had been on Florida’s death row for more than three decades. At the same time, Justice Kennedy noted that the last ten people executed in the state had spent an average of almost twenty-five years on death row. “Do you think that that is consistent with the purpose of the death penalty?” he asked the lawyer, “and is it consistent with the sound administration of the justice system?”

The situation was not particular to Florida. In California, more than two hundred inmates in Pelican Bay, the state’s toughest prison, have spent more than a decade in solitary which, in that institution, is an eight-by-twelve-foot cell, for twenty-two hours a day. Dozens more have been held there for fifteen years or longer. A federal judge in Oakland raised the possibility that holding prisoners in such isolation might qualify as cruel and unusual punishment, violating their Eighth Amendment rights. The ponderous barbarism of California’s death-penalty system was alluded to by United States District Judge Cormac Carney, an appointee of George W. Bush, in July 2014. Overturning the death sentence of Ernest Dewayne Jones, who had been sentenced in 1995 for the murder of his girlfriend’s sister, Judge Jones noted that of the more than nine hundred people California had sentenced to death since 1978, only thirteen have been executed. More than 40 percent of the rest have been on death row for at least nineteen years, and the backlog continues to grow. The delays, the judge said, are not due to repeated appeals of the inmates, but to the state’s own plodding efforts in moving forward and its impoverished defense system.

As the death penalty edges its way, ever so slowly but inexorably, into the past, the length of sentences and the growing prison population are becoming increasingly critical issues. Prisons are expensive to build, difficult to maintain, and troublesome to locate as no one wants a penal institution located anywhere near a residential area. The growing popularity of LWOP, life without the possibility of parole, adds significantly to the burden. A nineteen-year-old who commits a brutal murder that might otherwise have resulted in a death sentence might now spend fifty, sixty years, or even longer in a penitentiary at public expense toward no reasonable purpose. All studies indicate that the teenager could have been returned to society decades earlier at negligible risk. Most advanced countries have more practical penal systems than the United States which heads the list for long-term incarceration. One of the most interesting systems is found in Norway, as described in The New York Times by Dana Goldstein, a staff writer at the Marshall Project, a non-profit news organization that specializes in the coverage of criminal justice.

In Norway, the maximum prison term for a crime, no matter how grave, is twenty-one years. But that is just the initial sentence. At the end of the term, judges have the option of adding an unlimited number of five-year extensions if the prisoner is deemed a danger to the public. As recounted by Goldstein, the case for such a system was made by Marc Mauer, the director of the Sentencing Project, an advocacy group, in March 2015 before a congressional task force on reforming the federal prison system. Such a policy, Mauer said, would control costs in a system that is now 40 percent over capacity and would “bring the United States in line with other industrialized countries.”

Mauer’s argument, supported by statistics, was powerful. Studies show that all but the most violent criminals mature out of criminal activity before middle age, indicating that long sentences do little to prevent crime. Homicide and drug arrests peak at age nineteen, according to the Bureau of Justice statistics, and forcible rape peaks at eighteen. Some crimes, such as vandalism, crest even earlier, at age sixteen, while arrests for forgery, fraud, and embezzlement reach their summit in the early twenties. For most of the crimes tracked by the FBI, more than half of all offenders will be arrested by the time they are thirty. Criminal careers tend to be short. For the FBI’s eight most serious crimes—murder, rape, robbery, aggravated assault, burglary, larceny-theft, arson, and auto theft—five to ten years is the typical life-span for adults who commit those crimes, as measured by arrests. More than 10 percent of federal and state inmates, a total of nearly 160,000, are serving life sentences; 10,000 of them have committed non-violent crimes. Since 1990, the prison population over the age of fifty-five has increased by 550 percent to a total of 144,500 inmates. As a consequence of an aging population, the state and federal prison systems spend about $4 billion on health care.

Keeping dangerous people off the streets is just part of the rationale for imprisonment. The other part is the inclination to punish offenders. But, Mauer asks, “How much punishment is enough? What are we trying to accomplish, and where does redemption come into the picture?” Criminology Professor Alfred Blumstein, of Carnegie Mellon, commenting on the significance of aging in the sentencing process, noted that “we went crazy in the 1980s and 1990s. Lots of people, as they age, they are no longer a risk. We are keeping people in prison who are physically unable to represent a threat to anyone.”

The most harrowing aspect of long-term confinement is the specter of solitary confinement. It is likely that solitary will disappear from America’s justice system even before capital punishment. One can hardly question the cruelty of a system that places a human being in a cell sometimes not much larger than the mattress he is given to sleep on, while he is virtually denied human contact, and kept under those conditions for years, sometimes decades. Longevity records on such issues can be elusive, but it is generally conceded that the forty-three years Albert Woodfox has been held in isolation in Louisiana’s infamous Angola Prison is longer than any prisoner in the nation’s history.

Woodfox was one of the notorious Angola 3, which consisted of members of the Black Panther Party, a revolutionary black left-wing organization formed in 1966. He was still being held in solitary in November 2015, awaiting a decision on whether he would be tried a third time for the 1972 killing of a prison guard. On November 9, a three-judge panel of a federal appeals court reversed, by a margin of 2-1, a lower court ruling ordering Woodfox’s release and barring a third trial. He had been convicted twice for stabbing to death Brent Miller, a twenty-three-year-old prison guard, but both convictions were overturned on constitutional grounds. The other two men of the Angola 3 were Robert King, who was released in 2001, and Herman Wallace, who was released in 2013 and died three days later of liver cancer.

Clearly, the Angola 3, who maintained their innocence from the start, might have suffered their judicial fate at least in part because of their affiliation with the Black Panthers. Nineteen seventy-two, after all, was not a time of social tranquility in America. Richard Nixon was about to be reelected, Watergate was just coming into focus, the Vietnam War was still ablaze, the revolutionary temper of the times was in full flourish, and three black men could not reasonably expect to receive anything resembling justice in the state of Louisiana.

Of course the concept of Louisiana justice would remain a myth long after the turmoil of the late sixties and early seventies. Glenn Ford (whose case is discussed earlier in the book) spent nearly twenty-nine years on Angola’s death row before his conviction and death sentence were overturned in March 2014. His freedom did not last long. He died of lung cancer on June 29, 2015, at a home provided by Resurrection After Exoneration, a non-profit group that assists prisoners who have been freed. He was sixty-five years old. Ford’s attorney, Glenn Most, said that a medical test given to Ford at Angola had revealed a cancer marker, but he was denied the opportunity to see an oncologist.

Ford’s case had a marked effect on A.M. “Marty” Stroud III, the prosecuting attorney who helped convict him. Months before Ford died, Stroud wrote a letter to the Shreveport Times in which he apologized for his role in getting Ford convicted and said he was “full of grief and sorrow.” He further explained: “In 1984, I was thirty-three years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning.”

From there, Stroud went on to call for the abolition of the death penalty. “The really sad part for me,” he wrote, “is that as much as I would like to believe that this case will advance the cause of abolition of the death penalty, I am afraid that Louisiana is too steeped in the culture of death to abolish voluntarily capital punishment.

“I do believe, however, that the day will come when the Supreme Court will finally make note of all the innocents, like Glenn Ford, who have been released from death row and come to the conclusion that our society is incapable of administering a fair system of capital punishment.”

After apologizing to Ford, his family, the family of the victim who were denied closure, the members of the jury and the court for not having done a more thorough job, he closed his letter on a plaintive note: “I end with the hope that providence will have more mercy for me than I showed Glenn Ford. But I am also sobered by the realization that I certainly am not deserving of it.”

Months before Ford died, he and Stroud had a face-to-face meeting in which Stroud, his voice a bit unsteady, apologized to Ford and asked his forgiveness. Ford, to his credit, replied in a matter-of-fact tone. He said he could wish Stroud the best in his future but no, “I can’t forgive you.” It was an altogether proper response, a refreshing contrast to the treacly sentimental offers of forgiveness that have become the custom for the victims of horrendous crimes to bestow upon their predators.

Stroud’s turn of heart was not of course representative of Louisiana’s law enforcement community. In fact, not long after Ford’s death, Dale Cox, the acting district attorney of Caddo Parish, in the northwest corner of the state, explained to The Shreveport Times exactly what was required to bring order and justice to Louisiana. Capital punishment, he said, is primarily and rightly about revenge and the state needs to “kill more people. Retribution is a valid societal interest.” Then, as if trying to dispel any doubts that he might be at least marginally crazy, he offered an illustration: “What kind of society would say that it’s okay to kill babies and then eat them, and in fact we can have parties where we kill them and eat them, and you’re not going to forfeit your life for that? If you’ve gotten to that point, you’re no longer a society.” Cox went on to offer assurance that thus far he had not seen any case involving cannibalism. But, he warned, it would be the next logical step given what he called the “increase in savagery” in society.

Despite Cox’s primitive view of the world around him, Stroud’s call to end capital punishment is the more likely cast of the future, yet another small turn in the direction of abolition. The United States is a country infused with a culture of violence and a thirst for retribution. It has been that way from the very start, in matters both domestic and global. Change comes slowly but, it seems, inexorably. The propriety of capital punishment, both in its moral aspect and its merit as part of a criminal justice system, has been a matter of national concern for at least the better part of a century. It came into sharp focus in 1924 when Clarence Darrow put the concept itself on trial while defending Nathan Leopold and Richard Loeb in a bench trial that has become ingrained in American folklore.

Leopold and Loeb, teenage intellectual whiz-kids from prominent Chicago families, had killed young Bobby Franks for the thrill of it. Each was being fitted for the hangman’s noose when Darrow, the wondrous and eloquent freethinker, entered the case. He pleaded his clients guilty and asked that the trial to determine their sentences be conducted without a jury. Darrow, best known perhaps for his clash with William Jennings Bryan in the Scopes “monkey trial,” could bring magic to bear upon a jury, but here, he said, he wished the fate of the defendants to be decided by the judge alone; the responsibility for hanging two teenagers would not be divided by twelve.

In a dazzling closing argument that spanned several days and covered nearly one hundred pages in transcription, Darrow took on the death penalty before such sentiment had become the fashion. As in most matters, Darrow was decades ahead of the flow. “I never saw so much enthusiasm for the death penalty as I have seen here,” he said. “It’s been discussed as a holiday, like a day at the races.”

In his plea to the judge, Darrow introduced elements of psychology and philosophy; he reviewed a bit of the history of capital punishment, contending that as its use diminished, so then did the crimes for which it was applied. He quoted liberally from the Persion poet Omar Khayyam. Near the end, he summed up the case against the death penalty: “I am pleading for the future,” he told the judge and the world. “I am pleading for a time when hatred and cruelty will not command the hearts of men; when we can learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.”

The lives of Leopold and Loeb were spared. They were sentenced to life plus ninety-nine years. For a brief time, capital punishment became a popular, though largely intellectual, subject of debate. There were few abolitionists who felt compelled to act upon their views. The death penalty was used increasingly during the following decade, and it was not until the seventies and beyond that countries around the world began to take it off the books. France tore down its guillotine in 1972; Sweden did away with capital punishment the same year and the United Kingdom a year later. Many more countries dropped it in the eighties, and two dozen nations set it aside in the nineties. By the turn of the century, the United States was the only industrialized country in the West that persisted in performing state-sanctioned executions.

All the same, while the use of the death penalty is certain to diminish in frequency, it is not likely to disappear any time soon. America’s criminal justice system—unjust, corrupt, and odious as it is—appears to be embedded, by now, in the national character. Critics can bemoan the “broken” criminal justice system, but there seems to be little impetus to do much about it, no sense of outrage at the persistent inhumanity that is at the core of the machinery of justice.

David Swanson, author of War Is a Lie, sees it this way: “Civilization is something we no longer seem to aspire to. The United States locks up more people and a greater percentage of its people than anyone else. We lock them in training centers for anger and violence. We subject them to rape, assault, humiliation, and isolation. We throw the innocent in with the guilty, the young with the old, the nonviolent with the violent, the hopeful with those who’ve lost all interest in life. And we routinely subject numbers of prisoners to the torture of isolation. We lock human beings in little boxes for twenty-two or twenty-three hours per day.” Then, he asks, “Where is the outrage.”

The outrage always is slow in coming. When finally it arrives, it seems to have happened all at once, for it tiptoes in, as Sandburg wrote, “on little cat feet.” It happened that way with women’s right to choose, and even more so with gay rights and same-sex marriage. But if one looks back far enough and carefully enough, the roots of the outrage and finally the change it inspired can be found in incandescent markers that one failed to heed. How many little noted events led to President Obama’s taking on the criminal justice system in July 2015, midway through the seventh year of his presidency? He became the first president to visit a federal correctional facility when he walked through the gates of the El Reno prison in Oklahoma. There, he peered into a cell measuring 9-by-10 feet that contained three bunks, a toilet with no seat, a night table with books, a small sink, prison clothes on a hook, and some metal cabinets, according to the description offered by Peter Baker in The New York Times. Obama wasted no time in calling for a sweeping bipartisan effort to fix “a broken system” of criminal justice that has locked up too many Americans for too long, especially a whole generation of young black and Hispanic men. Not long after the president made his declaration, as if programmed in a time zone still uncharted, Pope Francis stirred some of the deepest waters of the national conscience when he toured the United States and voiced his unyielding opposition to capital punishment. To many, it seemed to be the most dramatic fusion of state and church since the Emperor Constantine brought Christianity to Rome.

If we look far enough into the future, as hopeful as prudence allows, we might hope to find that prisons as we now know them will no longer mar the landscape; no new ones will be built and those still standing will be razed or turned to more lofty purposes. Penologists of a far distant time might yet look back and know that today we stood on new ground and at a new time, and that when the battle was over, like Joshua at Jericho, the walls came tumbling down.