Dispatches From The Carceral State

carcel state

Carceral: adjective, car·cer·al \ ˈkär-sə-rəl: relating to or suggesting a jail or prison, such as the 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, 76 Indian Country jails, and hundreds of other military prisons, immigration detention facilities, civil commitment centers, and territorial prisons currently operating in the United States of America, AKA the freest nation on earth.

Item #1 – Arizona’s war on women

Women have become the fastest-growing segment of the U.S. incarcerated population. In what will surprise to no one with even a passing familiarity with mass incarceration in this state, the change in women’s state prison incarceration rates has been much smaller in some states, like California and Maine, and far more dramatic in Arizona.

women AZ incarceration graph

Item #2 – APAAC’s war on truth

This March, the taxpayer-funded Arizona Prosecuting Attorneys’ Advisory Council (APAAC) released the 4th edition of its “Prisoners in Arizona” report. Current APAAC Chairperson and Yavapai County Attorney Sheila Polk  lauded the report for supposedly proving that Arizona prisons are “filled with repeat and violent offenders.”

This is a truly curious assertion, due to the fact that the Arizona Department of Corrections (ADOC) itself states that,

  • 53.8% of Arizona prisoners are in prison for the first time.
  • 21.7% of all Arizona inmates are currently in prison for drug offenses – the highest percentage of all categories of incarcerated offenders. (This includes the 198 people in prison for marijuana possession only. In comparison, ADOC currently houses 150 people convicted of domestic violence.)

Back in 2011, the Arizona Attorneys for Criminal Justice debunked a previous edition of APAAC’s “Prisoners in Arizona” report point-by-point, proving among other things that the report conflates the definition of  “repeat” and “violent” offenders, artificially inflates the number of people classified as “dangerous, violent, or sexual offenders,” and falsely asserts that Arizona’s high incarceration rate is responsible for a drop in crime. The 4th edition of “Prisoners in Arizona” is no better, and might even be worse. Its principal author, John Lott, Jr., is an academic fraud who published a paper in December in which he claimed that undocumented immigrants in Arizona are at least 146% more likely to be convicted of a crime than other Arizonans. This claim is completely false, as it rests on the ridiculous notion that that all deportable, non-US citizens are undocumented immigrants. They aren’t, of course. A huge proportion of them are legal immigrants who violate the terms of tourist visas, work visas, or Green Cards.

Also, one more thing about this “report.” Maricopa County Attorney Bill Montgomery funded Lott’s “research” with RICO funds, which are public dollars raised through civil asset forfeiture and  intended for things like crime victim assistance, substance abuse prevention, and gang violence intervention; “pretty much anything other than promoting the legislative agenda of Arizona’s elected County Attorneys,” said Caroline Isaacs, Program Director for American Friends Service Committee-Arizona.

Item #3 – America’s war on racial equality

The United Nations’ Working Group of Experts on People of African Descent issued a report in 2016 recommending that the government of the United States make reparations to African-Americans as amends for America’s history of racism, racial terror, and mass incarceration. Among its findings:

  • From an early age African-Americans are “treated by the State as a dangerous criminal group and face a presumption of guilt rather than of innocence.”
  • Excessive control and supervision targeting all levels of the lives of African-Americans.
  • Racially based patterns of arrests without justification, detentions without legal counsel, and at times deadly physical abuse against African-Americans committed by members of the Chicago Police Department.
  • The over-representation of African-Americans in federal and state prisons, and disproportionately high incarceration rates for African-American men and women.
  • Federal and state use of mass incarceration as a system of racial control, in much the same way Jim Crow laws were used in previous decades.
  • Inadequate conditions of detention, and serious barriers to detainees accessing physical and mental health treatment.
  • A strong correlation between race and imposition of the death penalty. (African Americans represent 41.7% of the U.S. death row population, and 34.6% of defendants executed since 1976.)

Item #4 – The Carceral State’s war on our wallets

Finally, according to a new report from the Prison Policy Initiative (If you follow this blog and don’t donate to them, you really should. Their work is priceless), America’s continuing addiction to mass incarceration costs U.S. taxpayers $182 billion every year. This is more than the annual federal discretionary budget for food & agriculture, science, energy & environment, health, and transportation combined.

costs of mass incarceration

Coda – Larry Krasner’s war on injustice

Viva Larry Krasner! As Philadelphia’s new District Attorney, he is making an unprecedented effort to put a stake in the heart of mass incarceration.

– Joel Feinman

The Dirty Heart of Clean Elections

3

“The mind of man is capable of anything — because everything is in it, all the past as well as all the future.” – Joseph Conrad

Manufacturing fear of crime and criminals, and exploiting the boogeyman of the convicted felon is a hallowed American political tradition. As researcher Anthony M. Platt wrote in the journal Social Justice in 1994, “Every politician running for office in the November elections recognized that law and order demagoguery was the ticket to success.” This certainly applies to presidential contenders; see Bush 41’s execrable 1988 Willie Horton ad, Bill Clinton’s interruption of his 1992 presidential campaign to fly back to Arkansas to ensure the execution of a mentally ill black man, and Donald Trump’s seemingly endless invocations of Chicago, “American carnage,” and racialized sexual assault.

None of this fear-mongering and dog-whistling will come as any surprise to anyone with even a passing familiarity with American politics. What may be surprising is that, in Arizona, people convicted of felonies are forced by law to help pay for some of the very campaigns that demonize them to achieve victory.

Paying for the privilege of the hangman’s noose

On November 3, 1998, Arizona voters passed Proposition 200, the “Clean Elections Act.” According to the Commission which oversees it, the Act provides “clean funding” to statewide and state legislative candidates, who want to campaign with public funds instead of private donations as a way of avoiding the influence of private donors. Essentially, candidates who choose to “run clean” must demonstrate they have community support by collecting a set number of $5 qualifying contributions. The Clean Elections Commission then gives these candidates public funds to run their campaigns. These public funds come from three places: 1) the $5 qualifying donations gathered by clean candidates, 2) civil penalties levied against candidates who violate the clean elections law, and 3) a 10% surcharge on civil penalties and criminal fines. It is this third funding source that deserves special scrutiny.

Under Arizona law, any time a court imposes a fine on a defendant for a civil violation (parking ticket) or a criminal violation (robbery), the court must also impose a 10% surcharge on that fine, which goes into the clean elections fund. In October 2002, the Arizona Supreme Court upheld the constitutionality of this law in the case of May v. McNally, and ruled that the surcharge was a “tax” that did not violate the First Amendment’s ban on compelled speech.

Requiring people convicted of crimes to help fund the campaigns of law & order candidates who will, if elected, make their lives even worse would startle Kafka himself –  unless he was born in Arizona. Lest we think this does not actually occur, we need only examine some of the positions taken by the following “clean” elected officials:

  • State Representative Mark Finchem (R-Tucson), who has been endorsed by Joe Arpaio and the Arizona Citizen’s Defense League.
  • State Representative Bob Thorpe (R-Flagstaff), who likes to tweet about how the liberal media underreports black-on-white crime, and how former Attorney General Eric Holder is “soft on crime” because he doesn’t like how many black men are in prison.
  • State Representative Becky Nutt (R-Clifton), who supports private prisons and thinks “drug and human smuggling are out of control.”
  • State Representative Kelly Townsend (R-Mesa), who voted to lengthen the prison sentences of undocumented immigrants convicted of crimes.
  • State Representative Anthony Kern (R-Glendale), who believes in “mandatory sentencing laws with stiff penalties to prevent violent criminals and predators from being released back onto our streets.”

“A society should be judged not by how it treats its outstanding citizens, but by how it treats its criminals.” -Fyodor Dostoevsky

What could be more cruelly ironic than forcing people convicted of criminal offenses – whose newly depressed job prospects already increase the difficulty of making ends meet – to fund their further political demonization? How about forcing them to pay for an electoral system they cannot participate in.

Arizona law holds that, once a person is convicted of a felony, they automatically lose a host of civil and political rights, including the right to bear arms, the right to serve on a jury and hold public office, and the right to vote. One may think this is appropriate for people convicted of murder, rape, and armed robbery. However, before we clamber up a soap box and preach about not doing the crime if you can’t do the time, we might want to pause and reflect on just how many acts qualify as felonies in Arizona these days. Here are 29 pages of them, an incomplete list that includes such horrors as branding an animal that belongs to another person, pandering, and filing a false bingo report.

Such over-criminalization extracts a heavy toll on our democracy; as of 2016, Arizona had the 8th highest percentage of disenfranchised voters in the nation; 221,170 people, or 4.25% of the State’s population, was ineligible to vote in the last election due to a criminal record. Elections are won and lost by far smaller numbers than this. In 2016 Representative Finchem beat his Democrat opponent by 9,998 votes – 4.5% of Arizona’s disenfranchised voters. Representative Thorpe won his race by 4,770 votes – 2.1% of disenfranchised voters. Representative Kern’s victory over his Democratic opponent was the thinest of all clean elections candidates; he won by 4,001 votes, a mere 1.8% of the Arizonans disenfranchised by a criminal conviction.

“That’s some catch, that Catch-22,” he observed. “It’s the best there is,” Doc Daneeka agreed.” ― Joseph Heller

The Clean Elections Act’s final insult to injury occurs when people with criminal convictions attempt to get their voting rights restored. The law automatically restores most first offenders’ civil rights once they complete probation or are discharged from prison, but only as long as they pay off all of the fines and restitution imposed as part of their sentence.

To see how the momentous injustice of this can play out, let’s assume for the sake argument that our neighbor, John Yossarian, pleads guilty to selling real estate without a proper license, which in Arizona is a felony offense. After his plea the court automatically revokes Yossarian’s right to vote, and orders him to pay a $10,000 fine. This means Yossarian must also pay a $1,000 surcharge to the state clean elections fund on top of that fine. He can no longer sell real estate, so Yossarian cannot get a good job and earn a significant income. After eighteen months he successfully completes probation and doesn’t get into trouble again, but working for minimum wage at a fast food restaurant means he has no extra money to pay either the fine or the surcharge. Consequently Yossarian’s right to vote is not restored, and he cannot vote against his state representative and their tough on crime platform in the 2018 election. Even if Yossarian does scrape together the $11,000 it will take to get his voting rights back, a percentage of that money will help fund his representative’s re-election campaign against a more progressive opponent who, unlike Yossarian’s representative, wants to end mass incarceration and over-criminalization.

This is the realty of the Clean Elections Act, and its injustice plays out hundreds of times a day in courtrooms all over our state. The intention behind the Act – ameliorating the effect of money on elections – may have been noble, but as is so often the case in our history, it is the poorest and most helpless among us who must pay the price for our noble efforts. That price isn’t cheap, and can be measured by the 221,170 Arizonans who could not vote in the last election for a better and more equitable society.

– Joel Feinman

 

Oyez, Oyez, Oy Vey! The AZ Legislature Is Now In Session!

AZ SB1016 1

The 2018 legislative session is upon us, and like children lining up for Spongebob Squarepants on Ice tickets, our knees tremble with anticipation to see what zany antics and logic-defying feats of special interest derring-do our elected officials will get up to this year.

SB1016 – Making the Stasi Proud

Thus far it looks like the dumpster fire that has long been the Arizona Republican legislative agenda will not slacken in the slightest. State Senator John Kavanagh (R-Fountain Hills) has introduced SB1016, which requires people to report to police or rescue personnel “a life-threatening emergency,” if they can do so without endangering themselves or others. Failure to report would be a class 1 criminal misdemeanor, punishable by a fine of up to $2,500 and up to 6 months in jail.

The problems with this bill are legion. Never mind that it further over-criminalizes life in the “land of the free,” where one lawyer and researcher has estimated the average resident now commits three felonies every day. The bill also makes no effort to define what a “life-threatening emergency” is.

Presumably Mr. Kavanagh and his Republican colleagues consider planning an abortion a life-threatening emergency. If so, everyone from the clinic nurse to the receptionist to the supportive partner will find themselves indicted for a criminal offense if they do not immediately call 911 when they hear a woman utter the word “abortion” to a health care provider. And what about when I was 16, and my best friend Adam jumped off his roof into his pool? Clearly a life-threatening emergency if he’d slipped, or even misjudged the wind a tad. In Senator Kavanagh’s Arizona of small government and maximal individual rights, I should have narced on Adam the moment he clambered up the wall. Likewise the Senator would have you call the police on your squabbling cousins who had too many beers at the family BBQ (shove George too hard and he could fall and hit his head and die), and his bill would mandate you immediately dial 911 when you see another person driving too fast (speeding being a leading cause of deadly traffic accidents).

The AZ Legislature doesn’t want to abolish government; it simply wants to enlarge to the size of a bathtub it can bludgeon us to death with.

SB1016 is not Senator Kavanagh’s first foray into the field of blatantly unconstitutional laws criminalizing innocent behaviour. In 2016 he introduced SB1054, a bill that would have made it illegal for people to shoot video within twenty feet of any law enforcement activity without an officer’s permission. A first offense would have carried a $300 fine, and subsequent violations could have sent people to jail for up to six months. Thankfully the bill went nowhere, but Senator Kavanagh’s past and current legislative efforts expose the intellectual bankruptcy at the core of our state’s legislative majority; they are small government and pro-freedom only as long as people do exactly what they think they should do. The moment their beliefs conflict with the beliefs of others – we shouldn’t be government-mandated narcs, cities should limit the use of polluting plastic bags, schools should teach local history and culture –  our legislative majority seeks to expand the power of the government to arrest, convict, fine and imprison whomever they disagree with. This is big government at its biggest, and the coercive power of the state in it purest form. Senator Kavanagh and his ilk seem hell-bent on proving Reagan right; government is not the solution to our problem, government is the problem. At least their government, anyway.

– Joel Feinman