Police failures over Cherry Groce’s death raise deeper questions

The Guardian, Friday 11 July 2014 10.00 BST

Dexter Dias QC

 

At just after 7am on Saturday 28 September 1985, officers of the Metropolitan police smashed their way into an ordinary family home in south London with a sledgehammer. They were armed with loaded lethal weapons. A few seconds later a young mother was shot by a trained police firearms officer with a Smith & Wesson revolver. She was 4ft 10in tall and wearing a skirt and blouse. She was unarmed. She was shot in her bedroom in front of her children. The bullet fired into her body lodged in her spine and condemned her to spend the rest of her life in a wheelchair. Ultimately, the bullet killed her. The woman’s name was Dorothy “Cherry” Groce.

The shooting of Cherry Groce was followed by the Brixton riots of 1985. It is an event – and a tragedy – that has scarred a family, a community and a nation.

Yesterday an inquest jury in south London, 29 years after Groce was shot, delivered a devastatingly critical verdict about the behaviour of the police. They found that Groce’s shooting was caused or contributed to by a string of serious police failures in both the planning and execution of their armed operation. Serving Met officers unnecessarily put life at risk. The jury found that the raid should have been aborted. This is all disturbing enough. But what are the deeper questions that lie behind the headlines?

For what does the Groce inquest tell us about where we are now in terms of police-community relations? And given the tortuous journey the Groce family has had to endure in their decades-long fight to uncover the truth, what lessons are there about access to justice?

First, it is essential to situate the Groce shooting in its proper historical context. It shares a critical underlying theme with the Scarman report into the Brixton riots of 1981 and the murder of Stephen Lawrence on the other side of south London in the early 1990s. For one cannot understand what happened to Groce without understanding the issue of race.

It would be churlish not to acknowledge that the Metropolitan police has made efforts in the intervening three decades to improve its relations with the minority ethnic communities of London. But how effective have these initiatives been?

During the course of two intense weeks in the Southwark coroner’s court we were taken back in a forensic time capsule to the Thatcherite 1980s. The jury heard police statements read out denigrating “coloured youth” and deprecating local communities as having no respect for civic values or their duty to the law. But there is a distinct danger of perceiving some of the attitudes that were ventilated in court during the inquest as relics from an earlier unreformed and unreconstructed past.

Only last week the central London employment tribunal found that the Metropolitan police had instructed staff to delete files on sex and race discrimination. And more broadly, great concern still remains about the grotesque disproportion in the rates of arrest and incarceration of young black men in the UK – an unrelenting blight on claims to the fairness of our criminal justice system.

Second, one of the most distinctive features of this family’s fight for justice has been the fact that for so long legal aid was refused. This has been one of the more challenging and complex cases I’ve conducted. The notion that a bereaved family on their own should be forced to uncover the truth in court about how the police shot one of their relatives without any expert legal assistance defies comprehension.

It was only when Groce’s family launched a Change.org petition, and threatened to challenge the funding refusal, that things did move. More than 130,000 people signed their petition and the government capitulated. But why did it have to come to this?

The drastic reduction of access to public funding for inquests is but part of a campaign of devastation and despoliation of legal aid that this government has unleashed on the justice system. This fundamental assault on access to justice is deeply injurious to the public interest and protects perpetrators of wrongdoing and malfeasance in public office. As such, it is an affront to our nation’s international obligations to ensure the effective scrutiny of the contentious death of citizens at the hand of the state.

The Groce inquest is another in the recent spate of “historic” cases that have been assailed in some quarters for dredging up the distant past. Why does it matter after all this time? The Romans had a saying for it: fiat justitia, ruat caelum. Let justice be done, even if the heavens fall.

For those who have had to live every day with the damage caused by that bullet lodged in their mother’s spine, it has seemed like an eternity until some measure of justice has been done. What this prolonged and painful case unquestionably demonstrates is that the truth can – and must – come out. Even if it takes 29 years.

But that truth was known back in 1985. It was known to the Metropolitan police. The independent senior police investigator examining why Groce was shot found that the Met’s armed raid created “grave and unnecessary” risks to members of the public. But Groce was never told this. She lived the next 26 years confined to a wheelchair without being told this truth. In April 2011, when the profound damage caused by the police bullet finally killed her, she died without knowing it.

Groce was an innocent member of the public killed by the Metropolitan police. And we need to know that. We need to be reminded of it. We must not forget it.

Justice on a budget (deficit): The US prison rethink (@DexterDiasQC for Counsel Magazine)

Dexter Dias QC, currently a Researcher at Harvard, examines the lessons the UK can learn from US mass incarceration and prison education

The cull, when it finally came, was brutal.  With a single stroke of his pen, Bill Clinton both ratified the Violent Crime Control and Law Enforcement Act 1994 and eviscerated US prison education, cutting off the $200 million ‘Pell Grants’ that funded it.  Within a year, from there being 350 educational programmes in America’s penal institutions, there were less than a dozen.

Recalling those dark days and the unnecessary squandering of human potential that followed, Mark Krumholz, volunteer and organiser of a prison education programme in California, tries hard not to despair at the sheer short-sightedness of it all.  ‘You lock people up, do nothing with them, brutalise them, something’s going to happen when they come out.  It’s not rocket science,’ says Krumholz, who is also Associate Professor of Astrophysics at the University of California, Santa Cruz.

In similar vein, Sean Pica, who provides educational programmes in New York’s notorious Sing Sing prison on a ‘zero state funding’ model, finds it hard to conceal his frustration, ‘It’s the one thing reliably proved to cut recidivism, and it’s been the one thing cut from the budget.’ Confirmation of Pica’s belief came this month in a report published by the RAND Corporation, the biggest ever meta-analysis of the efficacy of prison education. Its findings: there is ‘strong evidence’ that prison education works.  Those participating in prison educational courses had a 43 percent lower chance of returning to prison than others, while those who took vocational courses had a 28 percent better chance of securing employment post-release.  But prisons are not, and never have been, sites where the voice of reason holds sway.  They have, as French philosopher Michel Foucault says, functioned as theatres of punishment, symbolic stages upon which social anxieties and angers are played out.

What is compelling about the US carceral estate at this precise historical moment is that a new act in the drama appears to be developing.  And it is a script that has yet to be formulated in the UK. A deep paradox lies at the heart of it: austerity has forced a penal rethink in way that times of plenty never did.  So what is the role of prison education in the USA in these deficit-ridden days – and what lessons might there be for the United Kingdom?

First, one must appreciate the magnitude of the US penal problem.  In England and Wales the prison population is around 85,000; in the USA it is 2.2 million. However, it is far easier to cite these figures than to absorb the vast human cost they entail.  The US custodial estate is the equivalent of the entire populations of Manchester, Liverpool, Birmingham and Bristol behind bars at this very moment.  When you add the people subject to the corrective control of parole and probation, the figure rises to 7 million.  That is more than were in Stalin’s Gulags.  How did US incarceration reach such stratospheric heights?

While many leading commentators cite the so-called ‘War on Drugs’, Linda Meyer Professor of Law of Quinnipiac University, Connecticut also identifies an ‘empathy gap’.  In a recent conference at Harvard on US mass incarceration, she stated that the image of the criminal ‘superpredator’ still stalks the civic imagination. As she puts it, when we speak of crime and punishment ‘all the monsters come into the room.’

One marker of the level of punitivism is the number of people consigned to a whole life term, without any prospect of release.  In the UK there are approximately 50 such people.  In the United States, there are 40,000.  Of these, 3200 will spend the rest of their lives in prison for non-violent offences.  Indeed, more broadly 50 percent of the entire US prison population is incarcerated for non-violent offences.  It is astonishing statistics such as these that, paradoxically, provides a way forward in the quest to reduce the prison population.

For the first time in a generation, the US prison population is falling.  Having peaked at its all-time historic high of 2.3 million in 2009, it has fallen in each of the subsequent years.  This in large part has been forced on the nation.  In California, for example, the Federal judiciary ruled that conditions in the state’s prisons were ‘unconstitutional’.  The vast cost of it all, an annual budget of $50 billion nationwide, has proved intolerable in times of austerity.  So steps have had to be taken.

In New York, judges have been conferred with a greater sentencing discretion to provide treatment and interventions for non-violent drug offenders.  Result: the prison population has fallen; crime has not gone up.  On the West Coast, Melissa Crabbe, who runs the Inside-Out project in Oregon, believes that the American addiction to ever-increasing incarceration has ‘crested’ and education will play a roll in the rethink.  She is finding formerly sceptical administrations more receptive.  However, this has never been her experience of coalface Corrections Officers, who have been unfailingly supportive of her educational work.  ‘They know that prison is a miserable failure,’ she says.  ‘They live it.’

So how and why does prison education work?  Sean Pica explains how in first 13 years of Sing Sing’s Hudson Project not a single student went back to prison. The workload on the students is onerous.  There are classes from Monday to Friday, with three hours per day without a break.  As he says, ‘That’s more than Harvard.’  For Pica, ‘This is so much bigger than college.  For the first time in their life they’re see that their thoughts have value. When they finish a course, it may be the first thing in their lives they’ve ever finished.  And if you can do that in that place,’ he says, referring to Sing Sing.  Pica is intimately acquainted with the obstacles: he is a graduate of Sing Sing’s programme, having served over a decade in prison himself.

So are there lessons here for the UK?  Three points must immediately be made. First, one must keep a sense of proportion. Underlying rates of incarceration in the UK are around five times lower than in the US.  And prison education, despite the controversial process of external tendering to run courses, has far greater state funding.  Nonetheless, in numerical terms our incarceration levels hover around their historic high. The degree of everyday misery and degradation produced by these custodial figures is exacerbated by the intense overcrowding plaguing the system.  The Howard League has discovered from a Freedom of Information request that 19,000 people share cells designed for single occupation.  As its Chief Executive Frances Crook states, ‘It’s far worse than anyone imagined: one in four people behind bars are packed like sardines into cramped cells.’

Second, there is a danger of stasis or decay in UK prison education.  In October Matthew Coffey, Ofted’s national director of further education, stated that standards of education in prisons were ‘unacceptable’, and the equivalent delivered to schools would produce a ‘national outcry’.  One is bound to ask whether impoverished education provision should be part of the punishment, particularly when lack of education so strongly correlates with criminal offending in the first place.

Finally, a cult of custody still looms menacingly over UK criminal justice policy.  It is endorsed by a Justice Secretary with a self-styled ‘tough justice’ approach.  While Chris Grayling professes to having no inclination to reduce the prison population, were he to look across the Atlantic, he might find a valuable lesson to learn.  There, in a refreshing display of realism and rationality, the US Attorney General Eric Holder stated, ‘Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.’  The question is whether we can candidly say we are immune from this vice.

A social illusion has haunted American penal debate for two decades.  It has postulated a binary choice between spending tax dollars on decent facilities and services (such as education) for prisoners on the one hand, and public protection by prison building and filling on the other.  But the empirical evidence demonstrates that money spent on prison education will save on future incarceration costs. RAND quantified the beneficial effect of prison education, estimating that for every dollar spent on prison education between $4 to $5 would be saved on incarceration costs in the three years post-release.

Therefore as we head towards the 2015 General Election in the UK, and the political position-taking around penal policy intensifies, a clear case can be made by criminal justice practitioners.  It is that parties (of whatever complexion) that profess to be serious about reducing crime must be serious about strengthening prison education and the educational support and training of those released. In times of austerity, when justice runs on a budget, this must not be misrepresented as displaying some kind of leniency towards offenders.  It should be viewed clear-sightedly as an effective form of collective social defence.  Crime and its prevention are immensely complicated social phenomena.  It would be regrettable to ignore what demonstrably works.

Dexter Dias QC practises from Garden Court Chambers, London, is a Researcher at Harvard University and a Visiting Scholar at the University of Cambridge.

Follow @DexterDiasQC

Originally published (with different images) by Counsel Magazine, January 2014.

Social justice review 2013: @DexterDiasQC for OpenDemocracy.net

Thoughts on 2013 – the turning point on female genital mutilation?

by Dexter Dias QC

2013 was an appalling year in most respects, including the disastrous Immigration Bill and the continuing rise in anti-immigrant rhetoric. Yet on FGM we may come to see 2013 as the year when progress really began.

Flickr/BlatantWorld.com

What kind of a year has 2013 been for social justice? If you were to ask social justice itself, ‘How was it for you?’, that much invoked but poorly understood concept might have some justifiable causes for complaint. But where does one begin the roll of dishonour when we’re so spoiled for choice? Perhaps by going back to basics.  At this time of year, one can of course reliably turn to Fox News for a sprinkling of festive horrendousness.

Racism

Last week Fox presenter Megyn Kelly told viewers that it was a ‘verifiable fact’ that both Jesus Christ and Santa Claus were white.  After all, as Kelly argues, ‘Why change it just because it makes you uncomfortable?’  One is tempted to observe that we can of course simply change the channel. But if we dismiss Fox News (and our own purveyors of lurid tabloid inanities) as mere ghoulish ‘entertainment’, we do so at our peril.  For such a stance underestimates their social impact in shaping not just what counts for ‘news’, but in circulating narratives that shape – and disfigure – the culture.  Take the question of racism.

In the year that the unmatched and magisterial Nelson Mandela died, and we had the 58th anniversary of Rosa Parks refusing to get out of her seat on a bus in Alabama, racial injustice, racial disparity – and just plain racism – remain far from eradicated. For particular lowlights we can marvel at the sheer appallingness of the Daily Express’s crassly named ‘Crusade’ to ban new migration. Then there was the Daily Star’s hysterical prophesy of war: alerting us that an ‘army’ of 200,000 Roma migrants had already ‘infiltrated’ our borders and a further invasion force was on the way.  Contrast this with some inconveniently sobering facts, elucidated by former diplomat Sir David Warren.

In his piece in the Independent, Warren pointed out that ‘All the evidence is that migrants put more into the economy than they take out.  Only a tiny minority – around 6 per cent – claim benefits.’ These competing claims must be seen in the context of the fractious debate that raged around theImmigration Bill (and still does).  But where to start with this misconceived, shamelessly opportunistic, affront to social cohesion?

What is especially contemptible about this piece of legislation is that it both panders to base populist instincts towards outgroups and foments social disharmony – all in one neat legislative package. Disastrous. And around the same time, we were treated to the Bill’s dangerous corollaries: vans driving around London displaying messages that people illegally in the UK should go home; and unsolicited text messages such as this sent by the UK Border Agency: ‘In the UK illegally?  Go home or face arrest.  Text HOME to 78070’ – never mind that messages were also sent to legally resident minority ethnic people. Finally on this, it would be a serious omission to forget the woefully inappropriate tweet from Guildford police, after a joint ‘operation’ with the UKBA: “Officers 1 Immigrants 0!! #WeWillCatchUpWithYou.”  One hopes that the officers in question have now been informed that not all migration to the UK is illegal.

Social suffering

Overall 2013 has been marked by yet more neoliberal damage to the social fabric. The structural weaknesses of this ideology, with the creeping marketisation of social life at its centre, have marred the economy, education and criminal justice, to name but three.  Along with this process has been the intensification of what French social theorist Pierre Bourdieu calls ‘social suffering’.

It is, for example, dispiriting to see foodbanks in Britain in the 21st century; regrettable to see a Minister of State (Danny Alexander) smiling for the camera at a foodbank in Inverness.  But beyond deprecating this PR faux pas, what is required is a cool analysis of the structural drivers that produce and reproduce the conditions for foodbank flourishing (which I will come to). It appears that the situation is set to deteriorate. The Trussell Trust reports the biggest ever rise in the use of their foodbanks, with 350,000 people receiving at least three days’ emergency food (a 170 percent increase in the year). As the organisation reports, these alarming numbers predate April’s welfare reforms, so the figure is bound to rise.

To contextualise such unwelcome news, we need to understand how neoliberalism produces vast inequalities of wealth.  How its attack on social welfare, and the associated demonisation of benefit claimants, must be viewed with the same lens as we examine its over-reliance on incarceration. The structural logic of the ideology creates enrichment at the top of social space and deleterious consequences at the other end: the production of insecurity and the reliance on punitivism and incarceration.

In England and Wales the prison population hovers around 85,000, near its historic high. At the same time, as the Howard League points out, there is chronic overcrowding with almost one quarter of the people incarcerated doubling up in cells designed for one person. Simultaneously, another part of the criminal justice system teeters on the brink of meltdown due to myopic and misconceived governmental plans to mangle Legal Aid.

The all-party Parliamentary Joint Committee on Human Rights has warned Justice Secretary Chris Grayling that his proposed cuts may breach human rights.  And in an unprecedented step, barristers will engage in a day ofprotest meetings in January. It is not without a sense of very real trepidation that one wonders what will be left of adequate access to justice for those who cannot afford their own lawyers – not just in five years, but by this time next year.

Female Genital Mutilation

Nevertheless in a world of bitter (and frequently futile) party political posturing, one would have imagined that one issue around which a respectful truce would have coalesced is Female Genital Mutilation (FGM). But no. Four Conservative MEPs voted against the motion in the European Parliament condemning FGM, a course of action that provoked International Development Minister Lynne Featherstone to criticise their ‘undermining’ of Britain’s role in combating FGM.  If you haven’t had the opportunity to follow the intensifying campaign against FGM, let me outline the dispiriting aspects of the present situation along with a hope for 2014.

Recently an intercollegiate group of Royal Colleges reported that approximately 24,000 young women and girls in the UK were at serious risk of genital mutilation this year or would in fact be mutilated. The practice takes a number of different forms, but essentially amounts to the mutilation of the genitalia for non-medical reasons. Although there were recent arrests in the UK for the suspected mutilation of a baby a number of weeks old, more typically the ‘cutting’ is inflicted on pre-pubescent girls aged between 5 and 10. (It is sometimes also inflicted on older girls.) The practice has been a criminal offence in Britain since 1985, and carries a maximum sentence of 14 years’ imprisonment, but there has not been a single successful prosecution in the UK.

Tackling FGM presents a formidable problem, since it requires a clear-sighted challenge to deeply entrenched cultural traditions among marginalised migrant communities, principally from sub-Saharan Africa and the Middle East. Frontline professionals have been unclear about their duties and wary of being accused of cultural insensitivity. To this end, this month the government issued new practitioner guidelines, but more than that, announced that in 2014 there will be the UK’s first Parliamentary Inquiry into FGM, to be chaired by Keith Vaz, MP.  With suggestions from the new Director of Public Prosecutions that criminal cases are in the offing, there is some prospect that 2014 will see the first successful prosecution for FGM.

However, I would caution against any tendency towards triumphalism about such a development. The purpose is not to demonise migrant communities already subjected to social exclusion and discrimination – although we cannot ignore the fact that unsavoury extremist groups have deployed the issue as supposed evidence of the inherent ‘barbarism’ of Islam. (This is erroneous for two reasons. Firstly, the practice is not prescribed by Islam. Secondly, it is also practised by adherents of Christianity, Judaism and animist religions.) So we must guard against any successful prosecution being strategically utilised to deepen communal divides.

On the other hand, we are entitled to welcome a criminal prosecution as an important symbolic marker, a statement of collective intent, that a crime that has for too long proliferated behind a veil of silence will now be pursued with determination. Of course, legal sanctions are not enough. Real change must come from within practising communities, and it would be fanciful to think otherwise.  But there needs to be a greater realisation that FGM, for all its cultural underpinnings, is inescapably and fundamentally an egregious violation of the bodily integrity of young women and girls.

We must resist the already circulating arguments that contesting FGM is the imperialistic imposition of external values. It is not. It is the protection and vindication of universally valid human rights that attach to all. Either young women and girls from practising communities possess these rights or they do not. If they do, then they are entitled to have them protected. Due to their very obvious vulnerability, that protection may have to be collective as well as community-specific. As has been frequently pointed out, it is inconceivable that if the mutilated victims were young white women and children there would not have been a deafening outcry. It is highly probable that thus far little has been done about these numerous mutilations largely because they have been seen as someone else’s problem. Therefore our resolve to eradicate the practice should not be affected by the ethnicity of the victims.

And so to 2014 …

Convention dictates that one ends a review such as this on a note of optimism.  But when one thinks about the resumed Parliamentary passage of the Immigration Bill and the anti-migrant hostility that will accompany it, or the deepening immiseration of the most vulnerable in our society from the relentless programme of welfare vandalism and public spending cuts, it becomes disrespectful to paint an unrealistically rosy picture. The bald truth is that many metrics and social suffering scales will deteriorate. But hand in hand with that process – a natural consequence of neoliberalism – there is the opportunity for those who find this bifurcation of society morally abhorrent to work together to oppose it.  The present administration may not be long for this world, but a change of government will little affect things if the servility to the myth of the market is not roundly rejected.

I would like to end on FGM because I sense that here credible hope exists. My wish for 2014 is that in the UK it becomes generally recognised that FGM is our problem. I hope that we come to acknowledge a common duty to challenge, publicise and oppose it. I believe that as the year turns we may be on the brink of a tipping point in the understanding of FGM in Britain. But with the plethora of deeply entrenched problems affecting society – those listed above are just a few – once FGM’s moment in the public spotlight fades the impetus for change may well weaken. We cannot let this happen.

For the sake of the many thousands of girls in the UK who are genitally mutilated every year, we must not let this happen. This above all is my hope for 2014. That we mark the year with a growing determination to stop this woeful practice. For every step in the right direction helps save another girl from mutilation.

About the author

Dexter Dias QC(@DexterDiasQC) is a barrister at Garden Court Chambers in London, a Researcher at Harvard University and a Visiting Scholar at the University of Cambridge.

Related articles

• @DexterDiasQC interviewed about FGM by TheStudentLawyer.com (kwinblog.wordpress.com)
• Journey to justice: American dreams and nightmares after Rosa Parks @DexterDiasQC for King’s Review, Cambridge (justicebrief.com)

Journey to justice: American dreams and nightmares after Rosa Parks @DexterDiasQC for King’s Review, Cambridge

by Dexter Dias QC

Fifty-eight years ago this month, Rosa Parks was arrested in Montgomery, Alabama for ‘civil disobedience’.  She sat where she wanted on a bus.  On 1^st December, the day of the anniversary, Barack Obama sent out a tweet with a picture of him sitting on the Rosa Parks bus, now housed at the Henry Ford Museum, Detroit.  For this social media intervention, Obama was accused in various quarters of crass narcissism, of making the story one about his own journey, of ‘forcing Rosa Parks off the bus’. But beyond these judgements about the President’s tactfulness, the anniversary of the Parks bus ride has generated debate around the progress made by African Americans in the 58 years since she refused to give up her seat for a white man in Alabama.

Much of the discussion has centred around whether, with the election of a black President, the United States is indeed now a ‘post-racial’society.  Indeed, in a corresponding social media calamity of their own making, the Republican National Committee opportunistically latched onto the anniversary to pay tribute to Rosa Parks for ‘her role in ending racism.’  The ‘GOP’, the Grand Old Party of Abraham Lincoln, was determined not to miss out on the commemorations.  After attracting a barrage of ridicule and invective, the Republican tweet had to be ‘explained’ and effectively withdrawn.  But what was there to explain away?  Nearly six decades after Rosa Parks’s act of defiance, in the aftermath of the Civil Rights movement, and with a black man in a second term in the White House, is the term post-racial for the United States a factual descriptor or merely a desirable dream? One aspect of the post-racial debate – the position of African Americans within the criminal justice system – provides an answer.

The term post-racial is one of uncertain origin but which has gained in currency in the aftermath of Obama’s election.  It is used to describe a society that, although built in significant measure on slavery and Jim Crow laws, has moved on and now operates in a ‘colour-blind’ way. This is a highly charged debate, zeroing in as it does on the fault lines at the heart of the US.  Even the terms used in the discourse are freighted, symbolically valenced signifiers of political affiliation.  Indeed, as DavidHollinger, Professor of American History at Berkeley, California puts it, ‘Why are so many people afraid of the concept post-racial?’

The implications of a truly post-racial America are obvious.  If it is the case that the United States has overcome the legacy of racial subjugation and slavery, then those black people who remain mired in poverty, who cannot find gainful employment, whose children are expelled from school, whose sons end up in prison, then they are to blame for these outcomes. If the playing field is level, then American society is a ‘fair game’ – the title of the documentary by Mario Van Peebles aimed at refuting the post-racial hypothesis.  Van Peebles begins the film with a soundbite from an unidentified woman who pithily captures the idea: ‘I’m not racist. I’m just tired to hear the black people complain. Obama’s election proves it. It’s a fair game.’ So how do we adjudicate these competing claims?  Given that it was the force of US law that was deployed against Rosa Parks, an examination of empirical data from the US criminal justice system shines a telling light on the question of racial progress.

The recent report to the UN Human Rights Committee by the Washington-based research centre The Sentencing Project makes for sobering reading.  African American males are six times more likely to end up in prison than their White counterparts. If present trends continue one in three Black men in the United States will be imprisoned at some point of their lives. As stated by Bruce Western, Professor of Sociology at Harvard, 60 percent of African American men who do not finish High School will be imprisoned.  It has become a ‘modal’ experience for this population.  Analysis by the NAACP (National Association for the Advancement of Colored People) indicates that black people are sent to prison for drug offences at 10 times the rate of the white population, while the rates of drug use in the two communities varies little.  How should all this be understood?

Michelle Alexander, Professor of Law at Ohio State, begins by placing great emphasis on the central role of the so-called ‘War on Drugs’ in exacerbating racial injustice.  Alexander spent several years poring over the empirical data relating the criminal justice system and states that study after study demonstrates that contrary to popular belief (and indeed her former one) African Americans do not sell (or use) drugs more than other population groups.  In the context of the glaring disparity in incarceration rates, Alexander argues that the election of Obama casts a shadow over the accurate understanding of race relations in the US.  It emits a nightmarish quality.  For Obama’s presence in the White House can be misconstrued as the arrival of the American Dream: the promise that a ‘Land of the Free’ for all has finally been redeemed.  Yet this superficial surface effect simply masks what Alexander describes as a ‘deeply disturbing racial reality’.

As she argues in her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, what the United States has witnessed is not the removal of the Jim Crow system of racial subordination but its structural redesigning.  For Alexander the criminal justice system operates as a central driver in the production and reproduction of an inferior racial ‘caste’.  The book found itself on the New York Times bestseller list for well over six months.  But, predictably, Alexander is not without her critics.  The critique from the Right can be readily imagined.  What is more intriguing is the criticism from the Left.

After the publication of the book in 2010, a groundswell of critical opinion developed against the basis of its argument.  Sociologist JosephOsel, for example, criticised its lack of ‘serious or sustained critique of colonialism, imperialism or capitalism. There is no discussion of international law, implicit racism, of privileged ignorance or prosperity.’ As has been often said, the word ‘capitalism’ is conspicuous by its virtual absence from Alexander’s text – an objection to the lack of structural analysis.

An alternative critical approach to an intricate understanding of the deeper engines of US mass incarceration is to examine its sociological underpinnings.  To do so, as social theorist Loic Wacquant argues, one must understand the particular social arrangement that has produced it – neoliberalism.  For Wacquant this system is founded on free markets, small government, free trade, the free flow of capital and deregulation at the top.  Indeed in his seminal work Punishing the Poor, Wacquant forcefully argues that it is in fact a misnomer even to call the phenomenon mass incarceration. It is not.  The term implies a widely distributed effect, whereas in truth this coercive intervention is asymmetrically inflicted on sections of society possessing the ‘triple filter’ of race, class and space (socially denigrated areas of entrenched poverty).

One must comprehend, Wacquant argues, how ‘hyper incarceration’ is a consequence of the project to redesign the neoliberal state.  A process that has the paradoxical effects of a rolling back of the state and deregulation at the top of social space, and the intensification of control and coercion at the bottom.  This burgeoning of the US penal state was directed at containing the problems neoliberalism produces: social insecurity, the attenuation of safety nets, precarious labour, unemployment, underemployment and the culling of public services.

The critical contestations above reveal an embedded problem confronting all seekers of social change. There is one status quo; there are not only innumerable alternative futures and routes to reach them, but a comparable number of understandings of the present dispensation.  However, Alexander, Osel and Wacquant would all agree (if for different reasons) that the criminal justice system explodes the myth that the United States is anywhere near a post-racial nation.  The danger of dreams of a desired future, like that of a post-racial nation, is that they can obscure the prevailing reality. Inhering within them is the risk of unconsciously substituting the preferred world for the prevailing one; and action required to achieve its realisation is neutralised by appeals to the elusive vision.

Beyond this, moreover, the illusion of a post-racial nation can have a chilling effect on candid discourse that seeks to expose durable disparities and inequalities.  It can be – and is – strategically invoked in the attribution of blame: if you do not succeed, if you end up arrested (let alone on prison), it is your fault.  A balance needs to be struck. One must not decry or dismiss social advances when they occur. It is significant that there is both less explicit racism (while it still exists) and less tolerance of the outright expression of racist sentiments (inconsistently deprecated). But it is also significant that the objective outcomes for African American men in the criminal justice system remain hideously and disproportionately negative.  Rosa Parks refused to give up her seat on the bus because she wanted to ‘know once and for all what rights I had as a human being and a citizen.’ But while a black man is indeed President of USA, very many of the 1 million African Americans populating the US prison system might well, with justice, ask the same question Parks did 58 years ago.

The belief in a post-racial United States is a tragedy of human failure. Failure in a very particular sense.  Not the failure to complete a journey to justice.  But a failure to appreciate that a few scattered pieces of evidence, a few signposts of racial progress, do not constitute the arrival at the desired destination.  Ultimately to begin to have a post-racial United States, the nation must have a post-racial criminal justice system.  That will require not just dreams, but policies. Policies that address the racial bias within the system, certainly. But more than this – and perhaps even more unpalatably for the birthplace and living laboratory of neoliberalism – policy interventions that fundamentally alter the chronic social and economic inequalities that correlate with race. To proponents of free markets and small government, such interventions in themselves are the very stuff of nightmare.

 

Dexter Dias QC is a Researcher at Harvard University, a Visiting Scholar at the University of Cambridge, and a barrister practising in Human Rights law in London.

Follow @DexterDiasQC and www.justicebrief.com

The Duane Buck death sentence: 8 facts you should know

More detail about the Duane Buck death sentence imposed by Texas:

• In 2000, then Texas Attorney General John Cornyn admitted that the United States Constitution was violated by the introduction of Dr. Walter Quijano’s expert testimony linking race to future dangerousness.
• This happened in seven death penalty cases.  Rehearings have been granted in six.  It’s only Duane Buck’s case that a rehearing has not been granted.
• The racist evidence that Black people are more dangerous was elicited in cross-examination by the prosecution at the sentencing hearing.  The ‘expert’ who provided the evidence – called by the defence, it should be noted – was relied upon by the prosecution in their closing speech.
• Harris County DA’s office in Texas, which dealt with the Duane Buck case, were three times more likely to seek the death penalty in cases involving Black people.
• Linda Geffin, one of the trial prosecutors, is urging a rehearing for Duane Buck, acknowledging that there was a serious irregularity in the evidence used to sentence him to death.
• In granting the last stay of execution, the US Supreme Court stated that the proceedings were “marred by racial overtones”.
• In 2000, the then Texas Attorney General John Cornyn promised that a rehearing would be granted for the group of cases in which the racist evidence was adduced.  Cornyn is now a US Senator.
• There is still no explanation as to why no rehearing has been granted in Duane Buck’s case.

For more do go to the NAACP LDF website –>> here

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Lest we forget: The imperishable speech of Nelson Mandela

Instead of testifying in the racist Apartheid court proceedings, Nelson Mandela delivered a heroically defiant speech – one that will never perish:

“During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

You can read the full text of this historic speech –>> here

Prison USA: Caging a country? @DexterDiasQC for The Barrister Magazine

Prison USA: Caging a country?

By Dexter Dias QC, Garden Court Chambers London, Visiting Researcher at Harvard University

When I started on my feet at the Bar, we had approximately 40,000 people in prison in the UK.  In the two decades from the beginning of the 1990s, that number has doubled.  Last week, concerns arose again of an imminent prison crisis as capacity rates tipped over 99 percent with 85,000 people in custody.

The Howard League for Penal Reform has for some time been making the compelling point that this perilous situation is exacerbated by chronic overcrowding.  Over 19,000 people share cells designed for one person.  As Frances Crook, its Chief Executive states, ‘It’s far worse than anyone imagined: one in four people behind bars are packed like sardines into cramped cells.’ The emergency intervention, Operation Safeguard, is once more on the verge of being triggered.  This will involve detained people being held in court and prison cells.  Unquestionably, the state of our prisons is a serious social – and human – problem.  But, frankly, writing as I do from the United States, it is nothing.

For in Project Prison, we’re amateurs.  Compared to the United States of America, we just dabble in detention. Inded some have argued that the United States has witnessed the caging of a country.  So let me try to convey the sheer mind-numbing enormity of the mass incarceration problem on the western shore of the Atlantic, and draw such lessons as we can from it.

As the nation commemorates the 150^th Anniversary of Lincoln’s Gettysburg Address, the prison population stands at 2.2 million Americans.  Put another way, that’s three times the death toll of the entire Civil War.  But what does this actually mean?  Imagine four British cities – Manchester, Liverpool, Birmingham and Bristol – and imagine each man, woman and child in them garbed in an orange Department of Corrections ‘jumpsuit’.  Build bars around every one of them and you have Prison USA.  At least, in part.

Because this only begins to convey the inconceivable scale of the American penal experiment.  If one includes people on parole and probation, there are more than 7 million people under correctional control.  As has been repeatedly pointed out, this is more than were in Stalin’s Gulags.  So a nation caged?  Not quite.  Closer analysis reveals that this cult of incarceration has not fallen evenly across the population, but is focused on certain groups.  In particular, people from the Black and Latino communities.

As academic Michelle Alexander argues in her controversial book The New Jim Crow, there are more Black men in prison now (around 850,000) than were slaves in 1850.  More than 60 percent of African-American men who do not finish High School will end up in prison.  Incarceration has become, as social scientists say, a ‘modal’ experience.  At a recent prison conference at Harvard, Paul Butler, Professor of Law at Georgetown (and himself an ex-prosecutor), argued that in terms of your chances, you were ‘better off as a black man without a lawyer in 1960 than a black man with a lawyer in 2013.’

It is for this reason that social theorist Loic Wacquant, Professor of Sociology at Berkeley, California, argues that mass incarceration is a misnomer.  It is not a country that has been incarcerated, but communities – particularly poor Black and Latino ones.  Both Wacquant and Alexander emphasise that to understand the penal expansion of the last three decades one must understand the policy initiative of the so-called ‘War on Drugs’.

Although launched by Richard Nixon in 1971, it was in the mid 1980s under Ronald Regan that it really took off.  It was, Alexander argues, a highly racialised policy, targeted on poor areas significantly inhabited by African-Americans, and resulting in large racial disparities in sentencing.  Study after study empirically establishes racially skewed disproportions in arrests, prosecutions and sentences. Alexander poignantly contrasts this with the body of research data she examined that demonstrates that Black people are no more likely to use or deal drugs than the White population.  However, their predominant neighbourhoods are much more intensively policed.

Whether or not one agrees with Alexander that the development of the American penal state should be understood as a ‘redesigning of the caste system of racial subordination’, the targeting of drugs has been a crucial driver in the rise of incarceration.  It also, paradoxically, provides one of the ways back from complete catastrophe.

For each of the thirty or so years between 1978 and 2009 the US prison population grew, reaching its historic peak of 2.3 million in 2009. But in the subsequent three years, as Bureau of Justice statistics show, the prison population has declined.  Why is this so?  It would be overstating the case – in fact, just plain wrong – to suggest that the US has witnessed an astonishing outbreak of empathy and understanding for the incarcerated.  Rather the generator of this change is something altogether more prosaic: money.  Or lack of it.  It is no coincidence that this penal rethink followed closely on the heels of the economic meltdown in 2008.  The system was groaning under the strain with cracks appearing everywhere. It was in important respects on its knees.

Providing an ominous warning for the UK’s present overcrowding, the Californian Federal judiciary ruled the conditions of custody ‘unconstitutional’ (the US Supreme Court recently rejected the state’s appeal).  This August the US Attorney General Eric Holder stated, ‘Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.’  Holder instructed Federal prosecutors to stop overcharging drug offences for non-violent drug offenders, since such charges automatically trigger punitive minimum sentences.  One wonders, with a sinking feeling, if we could conceive of Chris Grayling rethinking his self-styled brand of ‘tough justice’ and disavowing his intention not to cut prison numbers. But this is what has happened in America.

As David Fathi Director of the American Civil Liberties Union’s prison project believes, the country is beginning to turn.  There is empirical support for Fathi’s belief.  Take New York.  Here the state Assembly curtailed the severe mandatory sentences of former governor Nelson Rockefeller’s Drug Laws and provided judges with a greater discretion to offer drug offenders treatment. Result?  Prison population down; no rise in crime.

So what of the future?  One must be clear that none of this suggests there will be dramatic fall in the prison population.  From a structural and sociological point of view it’s unlikely.  The causal drivers remain implacably in place: chronic spatially concentrated poverty, discrimination, stunning inequality, lack of job opportunities and meaningful support for those leaving prison. But it’s a start.  And it shouldn’t be decried.

Equally there are lessons to be drawn here for the UK.  The American experience shows that it’s necessary to think again about the kind of virulent pro-punishment rhetoric offered by Grayling.  Otherwise you are likely to be forced to rethink.  One of these two futures is preferable.  We can look across the streaming Atlantic and acknowledge that this huge social experiment did not work.  That is an invaluable lesson.  It’s not too late for us to turn back from the brink of our own disaster.

This article has focused on statistics and numbers and not people.  In a further piece I hope to populate this calamitous situation with some real names and faces so you can assess the human costs of it all.  This, it seems to me, is essential.  As iconic American cultural critic Greil Marcus writes, ‘There are whole worlds around us that we have never glimpsed.’  And like migrant communities, areas of deprivation and desolation, and children’s homes, prisons remain largely unglimpsed realms.  We have a duty to look hard at them – not just to know what they are, but what we are.

Dexter Dias QC practises from Garden Court Chambers, London, is a Visiting Researcher at Harvard University and a Visiting Scholar at the University of Cambridge. Follow @DexterDiasQC

The Barrister Magazine website –>> here

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