Street Soldiers: Warfare American Style

Last night my local PBS station aired an amazing documentary that should be viewed by anyone concerned about the current state of young Black men growing up in the abandoned neighborhoods that exist in every major U.S. city. The film is entitled: Crips & Blood - Made in America. For those who saw the 2006 documentary Bastards of the Party, it tells a similar story. Both films are about the history of the Crips & Bloods - the gangs that took root in South Central Los Angeles more than 25 years ago, wreaking havoc on the lives of gang members and the neighborhoods they inhabit. So far the warfare among these two primarily African-American gangs have claimed the lives of more than 15,000 - primarily young people. And that's just the number of the murdered - it doesn't include the number who've been permanently maimed or injured or the tens of thousands languishing away in California's numerous and overcrowded prisons.

The men interviewed for the film describe themselves as growing up in a war zone where to show any sign of weakness or emotion (other than anger) is to risk serious harm or even death. Most acknowledged getting their first gun in their early teens. Because the war has been going on so long - there are now successive generations of Los Angelenos that know nothing except gang membership, shootouts, violence and death. They decried the lack of a father or other positive male role model in their lives and it's obvious that for many, the 'cool' posture and tough image they project is a cover for the pervasive fear and unspoken longing that's just below the surface.

The commentators and community activists discuss the various public policy decisions that have helped create these conditions and keep them in place -

• the decision to invest in prisons over education - California incarcerates more Black men each year than graduate from the state's colleges and universities;
• California has reduced funding for education - especially higher ed at the same time it has engaged in massive prison expansion (it's one of the many consequences of having an aversion to taxes and an attachment to cowboys);
  
• Until recently, the principal response to gang violence has been increased law enforcement and surveillance - particularly of young, Black men in and out of South Central LA;
  
• The adoption of mandatory minimum sentencing, three-strikes and no parole policies have removed large numbers of men from the community for long periods of time - the combination of long incarceration and post-conviction sanctions means that involvement in the criminal justice system becomes a lifetime barrier to advancement and mainstream life, regardless of ability and personal rehabilitation;
• The failure to fulfill on promises for community investment and political inclusion - (after the 1992 rebellion the city created 'Rebuild LA' with a promise of job creation, business development and committed attention to the problems of the area - within 18 mos the initiative was abandoned and with it the fragile truce between the Crips & Bloods)
• The failure of the media to consider urban warfare as newsworthy despite the high number of casualties. There's plenty of media coverage of school shootings which claim the lives of young people in affluent and/or suburban communities, but as noted recently by Bob Herbert in the New York Times, the media is virtually silent about the killings of Black and Latino youth.

One can debate the degree of personal responsibility one should take for the choices one makes in life - but to listen to these brothers it's clear they didn't feel they had a choice. The options available to them in the environment in which they live dictated in the words of one, "I had to put my moral feelings and thoughts aside and become an animal in order to survive".

The film ends on a hopeful note - it features the organized effort of former gang members and formerly incarcerated men to redirect the lives of young men who would otherwise follow their path. They are working in the community to address the fear, anger, frustration, desperation and nihilism that continues to define life for many Black and Latino youth. Most are working without resources and support from local government. Clearly, that needs to change. But more importantly, we need to think about the message we send as a society that continues to endorse war - against real and imagined enemies; that continues it's love affair with guns - including semi-automatic weapons and assault rifles (don't believe the founding fathers had those in mind); elevates results over means (e.g. doesn't matter how you made your $$$ as long as you have it - think Wall St. or doesn't matter if you break int'l conventions and torture people as long as the results are useful). Whether we like to admit it or not - our youth are watching, listening and learning. The Crips & Bloods are a mirror into an aspect of America we prefer to regret - the country that suppressed Black people with fear and violence; that virtually exterminated Native Americans in the name of 'manifest destiny' and believes in an economic system that benefits the few at the expense of the majority............................ These brothers are seeking to make change for themselves and the next generation - the question is will we be enablers of change or continue to maintain the same institutional barriers?

Repeating Past Mistakes

“Those who cannot remember the past are condemned to repeat it.” George Santayana

Last week I traveled to Ottawa to give testimony to a Canadian Parliamentary Committee reviewing legislation to establish federal mandatory minimums for drugs and weapons offenses. The Committee on Justice and Human Rights heard testimony on Bill C-15, legislation introduced by the Conservative Party to enact mandatory minimum sentences for drug offenses in Canada.

Bill C-15 creates minimum prison terms for a variety of drug offenses (i.e., trafficking, possessing for the purpose of trafficking, importing or exporting, and producing) involving any quantity of controlled substances such as heroin, cocaine and amphetamines. If passed into law, Bill C-15 would, among its other provisions, impose mandatory sentences on people caught with one marijuana plant for a minimum of six months. If growing a single plant is done on a property that belongs to another person or in an area where it may present a hazard to children, minimum jail time is nine months. It also mandates longer sentences for persons convicted within 10 years of a previous offense.

I was one of the "expert witnesses" invited by the Committee to provide evidence to help inform deliberations. Along with six other witnesses we testified to the evidence demonstrating the ineffectiveness of mandatory minimum sentencing in addressing the problems of drug-related crime and violence. Yet, it seemed clear from the comments of the Committee members and public record of proceedings to date, that the Canadian Parliament will ultimately approve this misguided legislation in its desire to appear “tough on crime” and make constituents in British Columbia believe it is ‘doing something’ about the gang violence that has plagued communities, particularly in Vancouver as it prepares for the upcoming Olympic Games in 2010.

I was invited because of my involvement in the successful campaign to reform New York's infamous Rockefeller Drug Laws (RDL). The history of these laws, their conception and implementation, should serve as a cautionary lesson of how easy it is to enact bad criminal justice policy and how difficult it is to repeal it – even when there is strong consensus for change.

In 1973, New York Governor Nelson Rockefeller, frustrated about the perceived failure of his drug treatment initiative, angry over the inmate rebellion at the state prison in Attica and looking to improve his political image with conservative Republicans who thought he was too liberal – proposed legislation to make New York’s drug laws the “toughest in the country”. When Gov. Rockefeller first announced his new “get tough” approach to drug dealers and users, the proposal was decried by all including the states prosecutors and judges as ‘harsh, vindictive and unworkable’, however by taking such an extreme position Rockefeller accomplished his goal of moving everyone else to the right by forcing others to take a harder line on drugs than they ever had before.

The RDL enacted later that year, mandated prison terms for numerous drug-trafficking crimes based largely on the weight of the drug sold. A first-time offender convicted of selling two ounces or possessing four ounces of heroin or cocaine received a mandatory sentence of 15 years to life--the same as the penalty for murder. Possessing as little as half a gram of cocaine or heroin triggers a minimum sentence of at least one year. Also enacted in 1973, the Second Felony Offender Law (SFOL) required with some exceptions a mandatory state-prison term for persons convicted of a second felony offense within 10 years of the first. Under New York’s criminal statutes the sale or attempted sale of any amount of a controlled substance is a Class B felony punishable with imprisonment.

As a result of his newly tough stance on drugs and ‘welfare cheats’, Rockefeller was successful in rehabilitating his image among Republican Party leaders. By 1974 he had sufficiently reformed himself that there was little objection to his selection by Gerald Ford as his Vice-President when he assumed the Presidency upon Nixon’s resignation. His time on the national stage was short-lived, by 1977 his political career was over and he was back to private life. He died of a heart attack in 1979. That same year Governor Hugh Carey and the state legislature agreed to reform some of the harshest aspects of the law following the recommendation of a commission of lawyers and prosecutors that found:

“In too many cases the 1973 drug laws, because of their mandatory and inflexible nature, require penalties which are out of all proportion to the seriousness of the offense or the criminal history of the offender”.

The Rockefeller Drug Law: After 6 Years, Officials Question its Effectiveness – Carey and Legislative Chiefs Planning Changes,
Tom Goldstein, NY Times, May 14, 1979.

In their first 20 years, the SFOL, the RDL, and other anti-drug laws combined for a steep and steady rise in the portion of incoming prisoners whose last convicted crime was a drug felony. In 1980, a drug crime was the most serious conviction offense of 11% of the state's prisoners (886 people). By 1993, that fraction had risen to 44 % (10,939 people). The RDL came down hard on people who were not exactly kingpins. In a 1993 case, an appeals court reviewed the sentence of Jesus Portilla, an asbestos remover with a wife and small child. A first-time offender, he had received a sentence of eight and a third to 25 years for a $30 cocaine sale.

The assertion that mandatory minimum drug sentencing policies can be justified as an effective deterrent to crime has been discredited by numerous studies and analysis of the impact of such laws. This criticism has not been limited to those with liberal beliefs about politics and crime – conservatives, including some who previously espoused ‘tough on crime’ approaches have called for the repeal of mandatory minimum drug sentences. John J. DiIulio Jr., a criminologist is emblematic of this shift. DiIulio was initially skeptical of the notion that drug laws imprison large numbers of people who are not menaces to society. But by 1995 DiIulio became an outspoken critic of current sentencing policy and called for the repeal of New York’s RDL. “It seems to me that with respect to these drug offenders, the mandatory minimums have begun to go haywire.” He went on to say the following in a notable article in the National Review:

“There is a conservative crime-control case to be made for repealing mandatory- minimum drug laws now. That's a conservative crime-control case, as in a case for promoting public safety, respecting community mores, and reinstating the traditional sentencing prerogatives of criminal court judges. . . . To continue to imprison drug-only offenders mandatorily is to hamstring further a justice system that controls crime in a daily war of inches, not miles, and that has among its main beneficiaries low-income urban dwellers.”

After more than 35 years of harsh mandatory drug sentencing the political consensus for change in New York reached a tipping point. This year the New York State legislature finally did what the public has been requesting it do for years – it voted to repeal most of the remaining vestiges of the Rockefeller drug laws. It is ironic that Canada is considering enacting a law very similar to the one it took us so long to undo in New York. It would be a shame if Canadian politicians repeated our mistake; the harms caused by 35 years of bad sentencing policy will take a long time to repair.

For many years, drug policies have been shaped by public concerns and political pressures that have been indifferent to the need for proportionality. Many factors--the persistence of drug use and abuse, racial undercurrents, a fear of crime, and an unwillingness to tackle social inequalities, among others--encouraged politicians and public officials to embrace inordinately tough sentences for drug felonies. Canadians should not be taken in by those claiming the answer to the drug problem is to “get tough”. The evidence of the past thirty years clearly shows that we don’t need to be "tough on crime"; we need to be “smart on crime”. Being smart means investing in what has been demonstrated to work – evidence-based drug treatment; effective drug education; proactive family support programs and early and continuous support for ‘at-risk’ youth. In this way we demonstrate societal commitment to invest in people, not prisons, to show compassion, not indifference, to help, not punish. Right-thinking Canadian legislators must defeat Bill C-15!