Drugs. Race. Politics. For years they have shaped, and often skewed the criminal justice system–and continue to do so today.
This morning is day two of the 7th Annual John Jay College/Guggenheim Symposium on Crime in America, put on by the Center on Media, Crime and Justice. (Day one went off well.) Panelists from worlds as diverse as law enforcement, advocacy, academia and government will gather with reporters to talk about “The Problem That Won’t Go Away: How Drugs, Race and Politics Distort U.S. Criminal Justice.”
We’ll be live-blogging throughout the morning.
8:40am–Panel 5: After Prison, What? Breaking the Mold on Prisoner Re-Entry
Panel includes: Risco Mention-Lewis, Asst. Dist. Attorney Nassau County; Sheila Rule, founder of Think Outside the Cell Foundation; Ray Tebout, director of counseling at the College Initiative at John Jay; Margaret Love, former pardon attorney at the U.S. Dept. of Justice. Moderated by Ann Jacobs, director of the John Jay Prisoner Re-Entry Institute.
“This is a term that almost didn’t exist ten years ago,” said Jacobs. “We didn’t think of this process of people coming home from prison as a whole field of study.”
Only a tiny number of the people who end up incarcerated are the “crazed criminals” we may hear about on the evening news. Yet those stories, Jacobs said, often dictate policy.
“What is it that supports a criminal conviction becoming a life sentence?” Jacobs asked. “Why do we make so many laws on the exceptional, or the potentially exceptional, case?”
Jacobs framed this panel as a deeper look at re-entry–taking re-entry “out of the box.”
Love opened for the panelists. We’ve been talking a lot of mass incarceration, Love said, but “my concern is mass conviction. Two-thirds of people who come in contact with the criminal justice system don’t go to prison. They stay in the community. But they’re stuck with a conviction.”
Estimates put the number of people with felony convictions at 20 million.
Life for those with a criminal conviction has become measurably harder in recent years, Love said. Other than citizenship status, a criminal conviction is the one permissible label against which people can discriminate–there are “upwards of 35,000” laws, Love said, that do so.
“It’s been called a secret sentence, or invisible punishment.”
Love’s message to journalists: Labels. “I think the careless use of labels in reporting tends to perpetuate” stigma she said. “I am becoming a warrior against words like felon, offender. It doesn’t help if you put ‘ex’ in front of it.”
Sheila Rule continued by discussing her evolution from a New York Times journalist to an advocate and founder of her foundation. It began at Riverside Church, when she began responding to letters from people in prison. She had not been particularly involved in the issue–but the correspondence made the people behind bars real to her. These were individuals, with stories to tell. She has come to dedicate her career to using these stories to combat stigma.
“If the stigma is not tackled, very little is going to dramatically change,” said Rule. “We need to let people who are stigmatized, people who are dehumanized to tell their own stories.”
She hopes those stories can help others realize what she did. For the majority of people, “it’s not that they oppose this group of men and women and children,” said Rule. “It’s that they don’t think about them.”
Mention-Lewis spoke directly to journalists. The media has the power to shape public thinking–that’s a responsibility, she said.
“How are you characterizing people to the greater populace?” she asked. “You can actually be on the forefront,” she added, “not only changing the stigma of having a criminal conviction, but also the stigma of being black in America.”
Race matters here, she added. “We haven’t done a lot of talking about race, because race is not comfortable. But we must.”
Ray Tebout spoke last. He spoke as a counselor at the College Initiative, and as a man who spent more than a decade behind bars. We need to think of two sides, he said. Personal responsibility of individuals returning from prison to change their lives, and, on the other side, how we talk, label and what we demand from those who have tangled with the criminal justice system.
“The worst thing you did should not become your identity for the rest of your life,” Tebout said. There is no definition of when people are redeemed. When do you get to be rehabilitated?
Those questions are tied to Tebout’s philosophy that re-entry demands a shift in an individual’s relationship with the greater world.
“I think one of the core things about being a criminal is that you’re selfish,” he said. A key to his success was looking not at what he was owed, but what he could offer. Then offering it. “I shifted from what I wanted,” he said, “to what I had.”
Jacobs threw out the first question–how do we address not only questions of convictions, but its links to race?
A couple of suggestions:
“Start looking at race as an economic situation,” said Mention-Lewis. “You as writiers, you are probalby the most important people on the forefront of race.”
“How do you talk about race more productively?” Rule said. “You start talking about it.” It takes courage, she said. But it needs to happen.
“We have to tell stories,” Love said. “We have to start putting a human face on any kind of problem.”
10:30 am–Panel 6: Did You See That Man? The Challenge to Eyewitness ID
Fernando Bermudez, exoneree; (standing) Jennifer Dysart, professor at John Jay; Brandon Garrett, Professor University of Virginia Law School; Joseph Krakora, New Jersey public defender; Tracie Keesee, division chief of the Denver police department. Moderated by Jeff Rosen of George Washington University Law School and the New Republic.
Unreliable eyewitness identification is one of the most persistent causes of false conviction, experts say.
“We know what the problem is but courts have remained resolutely unwilling to fix it,” Rosen said, highlighting the recent U.S. Supreme Court decision in the Perry case.
Bermudez started off the panel. He spent almost two decades in seven different maximum security prisons in New York City. The conviction rested heavily on perjured testimony and improper eyewitness identification. In 2009, his conviction was overturned after 11 appeals on a claim of actual innocence.
Keesee came up next. She walks in two worlds as both law enforcement and a researcher. She outlined innovations now available to departments, and also the difficulty implementing them. The culture of policing plays in, and a general hesitancy to change.
“Race is always intertwined with policing,” Keesee said, “no matter what we would like to admit or not to admit.”
Keesee noted that we demand a lot from our police officers. These issues are complicated. “We’re asking them in 30 seconds or less to apply those laws and make decisions,” Keesee said.
There is an increasing reliance on technology, which many assume increases both speed and accuracy. That assumption may be false.
“We cannot ignore the impact that technology is having in this area,” Keesee said. It has made many things more efficient. But human error still plays in, she said. Bad search criteria. Sloppy fingerprinting. Unconcious bias on the part of witnesses and officers. Job and political pressures. These mean journalists and policy makers should continue to question processes and push for change.
Krakora shifted the discussion to New Jersey v. Henderson, which radically changed laws governing eyewitness id in New Jersey. The court basically recognized what researchers have been saying for years.
“Memory is not like a video tape,” said Krakora. “It’s malleable and subject to all types of influences.”
The precise effect the case will have is still being worked out, but here are some likely changes:
- Witnesses may to be told the perpetrator may or may not be in the array
- Departments will make sure the person who presents the lineup doesn’t know who the suspect is, and can’t unwittingly impact the witness’ choice
- Juries may be instructed on issues related to eyewitness ID
- Juries, when relevant, may also be instructed about the impact of weapons and stress on memory
Garrett looked at 250 exonerations in his book, Convicting the Innocent. He pointed out one great difficulty of these eyewitness cases: “There were hardly any cases that I looked at where the witness were not absolutely sure they had picked out the right person.”
Yet 78 percent of 160 cases Garrett looked at involved suggestive techniques. These necessarily weren’t illegal, and might not have raised the eyebrows of a judge, but they may well have changed the outcome of the case, and the lives of those wrongly convicted.
The Henderson case marks a step forward, but one problem, Dysart said, is that jurors don’t really understand many of their instructions. Even with the cautions, that may not fix many issues.
Dysart drove home the point that we need to better define what is allowable in court. She showed one case in which a detective had drawn “masks” covering all but the eyes of eight suspect photos (see the picture at left). After some time, and perhaps some encouragement, the witness identified number 7. That was the police’s suspect.
Pointing to the absurdity of this lineup, Dysart said that while we must talk about best practices, “on some basic level we have to talk about some common sense.”
12:06 pm–That’s all for this year. The rest of the day our fellows will have workshops and roundtables with key panelists. Keep an eye out for future stories from fellows scattered around the country on The Crime Report.