We found it–it’s ours!

Civil asset forfeiture sounds confusing, and most Americans don’t know that it means drug enforcement officials can help themselves to people’s cash, cars and other belongings. Christopher Ingraham’s article in the October 1, 2015 issue of the New York Times is titled: Most Americans don’t realize it’s this easy for police to take your cash.  

In The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander calls forfeiture laws “Finders Keepers” and traces the practice of the police being able to seize cash and assets when enforcing drug laws back to 1970.  But it wasn’t until 1984 during the Reagan Administration that Congress amended the law that allowed all law enforcement agencies to retain the proceeds for their own use. Alexander continues, “ Suddenly, police departments were capable of increasing the size of their budgets, quite substantially, simply by taking the cash, cars, and homes of people suspected of drug use or sales.” [1]

When I read about this in The New Jim Crow, it shocked me, and then I remembered bringing up the idea of search warrants with my prison students in a civics class one day. It set off a firestorm with my students saying that the police could barge in and help themselves to anything they wanted. At the time, I found it hard to believe.

Several rules make it even worse. A mere suspicion that someone is involved in using or selling drugs is all that’s need for property to be seized; the owner has no right to counsel; and the burden of proof is on the owner. Few people can afford lawyers and do not want to challenge the government’s action for fear of criminal charges.

There are even more insidious aspects to this. I cannot imagine the anger, desperation, frustration and despair of having property seized only because the authorities are suspicious. For the police to be able to simply help themselves to someone else’s property opens the door to all kinds of abuse and corruption. More people need to know that this has persisted for decades, with reforms not going nearly far enough. As Alexander writes, “Despite all of the new procedural rules and formal protections, the law does not address the single most serious problem associated with drug-war forfeiture laws: the profit motive in drug-law enforcement.” [2]  No wonder the drug wars have continued!

Fortunately, there is bi-partisan support for reform of this practice. In a time of legislative gridlock, the beginnings of reform are sailing through both houses of the Michigan legislatures.

  1. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press, New York, 2012), 79.
  2. Ibid., 83.

The Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

–The Bill of Rights’ Eighth Amendment


We are not doing at all well on this one. Three recent articles address the issues. The Bail Trap in the magazine section of the New York Times on August 16, 2015 says, “Every year, thousands of innocent people are sent to jail only because they can’t afford to post bail, putting them at risk of losing their jobs, custody of their children–even their lives.”  

NPR posted an article entitled In Ferguson, Court Fines and Fees Fuel Anger; the article explains people’s outrage in response to the city’s use of fines. 

On September 9th the New York Times published an article called Solitary Confinement is Cruel and All Too Common. Its first paragraph says,

“If mass incarceration is one of modern America’s deepest pathologies, solitary confinement is the concentrated version of it: far too many people locked up for too long for no good reason at no clear benefit to anyone.”

Justice Anthony Kennedy says that solitary confinement “drives people mad.”

The problem is far larger than excessive bail, fines and 80,000 people in solitary confinement.  People are sentenced for decades for drug offenses, devastating lives and whole communities; drug use is still a criminal issue and not a public health problem; disproportionate numbers of people of color languish on Death Row; many people on Death Row are innocent; children are incarcerated, treated as adults, put in solitary confinement and given life sentences. All of this horror says as much about our divisive politics of fear and the finger-pointing culture we live in as it does about the millions of people snarled in the system. This situation says that millions of impoverished, often mentally ill people and people of color simply do not count. We talk long about criminals paying the price, but we are failing to look at our thirst for punishment, our long and sordid history of racism or the situations and policies that set people up to fail. We are far too eager to see people behind bars as totally bad and not fully human. Using the right language is useful. The American culture has deep pathologies. I wish we had a national integrity and paid as much attention to the 8th Amendment as we do to the freedoms of speech and religion. I try to maintain hope, and the fact that California is addressing these ugly conditions is encouraging.

Restorative Justice

Restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behavior. It is best accomplished through cooperative processes that include all stakeholders.
Practices and programs reflecting restorative purposes will respond to crime by:
  1. identifying and taking steps to repair harm,
  2. involving all  stakeholders, and
  3. transforming the traditional relationship between communities and their governments in responding to crime.

Russian writer and philosopher Fyodor Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” If he could examine our prisons today, I think we would be judged very harshly. If he could see the millions of people in them and see how we are criminalizing poverty and childhood damage, we would be judged inhumane. If he could learn of the draconian sentences for non-violent crimes, we would be judged unjust. If he could see what damage mass incarceration is doing to families and communities and how difficult we make it for people getting out to put their lives back together, we would be judged foolish and shortsighted. If he could see the number of children we condemn to adult, violent environments and lifelong sentences, contemplate the tens of thousands of people in solitary confinement and understand the way most incarcerated people are treated, we would be judged ruthless and brutal. If he could understand its racist elements, I think he might point out our core value of equality and label us hypocritical.

Criminal behavior is complex, and some of its root problems like poverty, mental health issues and poor—or no—educational opportunities seem intractable, but there are better ways of dealing with criminal justice if we care enough about our identity as a people. We need a sharp 180 degree turn toward restorative justice. The ways is which we carry out “justice” is tragically broken and sick, and the damage being done is affecting us all. It—and we–need to be healed.

Across the Line

Making big changes and seeing the world very differently require courage. Maya Angelou said, “Courage is the most important of all virtues, because without courage, you can’t practice any other virtue consistently.” Individual people can so easily put blinders on about big, painful problems, but we are also capable of moving from a place of safety and security over into an unknown space where we feel insecure and often frightened. Making courageous decisions needs moral muscle and a desire to feel honor and self-respect. It is how we grow. Instead of focusing on these national faults lines in our criminal justice system, we could focus on our strengths, our capability for great compassion and our deep concern for the common good. If individuals are capable, then so are we as a nation capable. I’ve found people’s courage and capabilities amazing—especially among my students in prison.

Dropping out of school has serious consequences, especially to people’s self-respect. People who drop out often feel like failures and losers. None of my prison students had graduated from high school before I knew them. I think about the first days back in school for these men—how vulnerable they looked with their wooden faces and wary, anxious eyes. But, they had already crossed the first difficult line, the doorway into the office to sign up. They had to swallow their pride about their grave mistakes. I found it so interesting when asked about the decision they most regretted, that they said it was not the crime they committed, but dropping out of school. “If I hadn’t dropped out, I wouldn’t be here,” they answered.

They had to look in the mirror and face themselves as people with very rusty basic skills in reading, writing and math and as adults who knew very little about what was in their textbooks. In the macho world of prison, it took great courage to be doing the right thing for their lives, to face the unknown world of being back in school. They had to face their fears about failing again, open their books and begin. They had to decide that their lives were worth something, that they just might be capable of succeeding after all. One young man wrote me a note about three weeks into the semester, saying that he wasn’t sure he could do the work, but he wanted me to know how hard he was trying. He said it took him a whole year to “not be too scared” and sign up for school. I watched and was awed by his courage. I watched their courage every day.

I see a connection between being courageous—and the development of personal dignity. I wrote about South Africa in my last post, and how its people still give us shining examples of what it means when we put ourselves in vulnerable positions and do amazing, out-of-the-ordinary things.

Nelson Mandela gave the world so many shining examples of both courage and humility. There were many ways he could have reacted to his twenty-seven years of political imprisonment. If he had meted out punishment, many people would have understood a sense of anger and revenge. He could have punished the people who took away so many precious years. He could have called for the same kind of humiliating damage he himself had experienced. Instead, he invited one of his white jailors to his inauguration and gave him an honored place, showing his country and the world a new level of human stature, a new humanizing dignity and a new kind of courage.

The United States has our own shining examples of astonishing courage and dignity in the face of tragedy. The Christian Science Monitor Weekly magazine on April 13, 2015 has a cover photograph of Ricky Jackson, who served 39 years in prison, making him the person serving the longest sentence in America’s history for a crime he did not commit. The article called Innocence Found: The Ricky Jackson Story follows the intricacies of Jackson’s case and his efforts to free himself. It follows the Ohio Innocence Project, whose members started working on the case in 2006.

Eddie Vernon, a witness in the case, was only thirteen-years-old when the police and prosecutors coerced him into lying about what happened. His testimony sealed Jackson’s conviction—and that of two other young men, who were also innocent and spent decades in prison. After trial, Jackson was sentenced to die in the electric chair, and he spent two years on Death Row until the federal Supreme Court ruled Ohio’s capital punishment unconstitutional. The next thirty-seven years found him in a succession of prisons. When he went before five parole boards, they looked for a change in him and some kind of remorse. When he couldn’t demonstrate that because he was innocent, they extended his sentence each time. Eddie Vernon, after decades of his own remorse and guilt, finally came forward—terrified of being convicted of perjury. He too demonstrated great courage. Finally, the state withdrew and Ricky Jackson was freed.

What makes this story so compelling to me is that Jackson isn’t angry or bitter. He managed to live in prison with grace and humility, and he exhibits those same qualities as he struggles to put his life back together while dealing with the challenges of being out in the world. He has met with Vernon, and doesn’t harbor any resentment or anger toward him, knowing how much Vernon has also suffered.

Innocence Projects and organizations like Bryan Stevenson’s Equal Justice Initiative are finding innocent people on death row and serving years and years all over the country, creating tragedy for victims and their families and dishonor for us as a nation. I wonder how Ricky Jackson’s fate would have changed if restorative practices had been in place. As most programs involve the community, it might have been far harder, if not impossible, to coerce and believe the testimony of a thirteen-year-old boy. We have to drastically change course if we want to be move toward being more civilized, to use Dostoyevsky’s language.

When my students ventured across the scary line to sign up for school, they were being accountable to themselves, signing up to be their best, not their worst. They were moving beyond the labels of drop-out and felon and becoming students, then graduates. When graduation day came and they could finally wear the red cap and gown, they all walked and stood taller, their dignity and self-respect in place. Education is a part of restorative justice as it helps students discover their competence–and their goodness as human beings.

Maya Angelou also says, “I think the courage to confront evil and turn it by dint of will into something applicable to the development of our evolution, individually and collectively, is exciting, honorable.” All of the parts of restorative justice try to enhance the best in us: our ability to be responsible, our talent for creativity, our capacity to make moral choices, our power to be compassionate and our courage to be forgiving. With courage, we can all move across the line and begin to see our system and all of its victims differently. We need a change for the rest of us, because it would give us a much-needed new identity. It would honor us. We need to look no further for exemplary role models than those people who’ve spent years and years behind bars.

Unlearning Long Divisions: Safety Nets & Bandwidths

Unlearning Long Divisions: Introduction

The prison fence obviously divides us, but we are separated in other more subtle structural ways, by how we build wealth—or are not able to—by wide opportunity gaps; by our own judgments, assumptions and inabilities to listen to and know each other; by neighborhoods, lifestyles, and cultural misunderstandings. America has always had its separations, of class, race, cultural groups and religions, but it seems that the rancorous voices of political campaigns, talk radio, and online comments have turned up the volume and deepened the divisions between us. Much of it is fear-driven, no more evident than how we perceive people who are behind bars. The ideas in the following posts come from my interactions with my inmate students, who taught me how to unlearn many of my own assumptions—and to see them and my country in new ways.

Unlearning Long Divisions: Safety Nets and Bandwidths

I don’t make great decisions when I’m stressed, worried, or sleep deprived.  I say or write things at the wrong time and in the wrong way. I push “send” when I haven’t had enough time or energy to think through what I’m writing. I usually pay my bills as quickly as possible, but at the end of the month in which I lost a family member, I was shocked to find them in the mail with interest charges and late fees. I simply hadn’t thought about my bills at all. In our consumer-driven culture, I make silly purchases when I’m feeling stressed. But, I have never been in a situation when I believed that my current upsets and stresses would last indefinitely. I belong to a big family that provides a safety net. Millions of people don’t have that kind of security, and for many their sense of insecurity lasts a lifetime.

I’ve always heard talk about poor people being lazy. And, I certainly hear a lot of judgments about people behind bars: their criminal behavior, their poor choices, their lack of motivation, and their laziness. So often, prison and poverty are inextricably linked. So many of the men I knew in prison came from impoverished communities; some from abject poverty.

 I’ve thought a lot about these “poor choices.” If a young boy’s father is in jail, if his mom has two jobs to support the family, if his school is failing him, if his community is dangerous, and if he sees few people working because there are so few jobs, I wonder what his good choices might be? When my students made choices to swallow their pride and acknowledge the hard work necessary to graduate, they were perfectly capable of making good decisions. When incarcerated, school is a good place to be—and they knew it.

However, when they had news about serious problems, a sickness or a death of someone they loved at home, when they worried about their own health, when they had problems in their unit with a bunkie or an officer, they didn’t always make good decisions as students. When they were “short”—close to going home—maintaining their same level of performance was very often difficult.

Mr. Gregory, an African-American man in his mid-30’s, was neatly dressed and soft-spoken. In my English class he was an exemplary student, so well read that he brought me titles that the class could read and that I should read. “The character development in this novel blew me away,” he would say as he either gave me a title or loaned me a book he had somehow managed to get from the outside. He was never late and never missed a class. I couldn’t ever give him less than an A.

Then, just as he was getting ready to graduate and go home, he fell completely apart. He’d been incarcerated for more than ten years, and he was extremely worried about what awaited him outside the fence. When I talked to him about college, he asked me how he would ever be able to afford it. He was going home to Detroit, not a place with a plethora of jobs for anyone, let alone people who had criminal records. His assignments went missing, and they were done poorly. He reported that he was constantly distracted, worried, and losing sleep every night. He came to class, but his usual role as a discussion leader disappeared. It seemed the person he had been had disappeared too.

I saw the same kinds of stress and worry about going home with many of my students. I watched how stress affected their school performance. I wondered about the impoverished conditions they had come from; I wondered about the tragedies and traumas they had experienced. I wondered how all of that had affected the choices they had made.

Sendhil Mullainathan and Eldar Shafir have written a book called Scarcity: Why Having Too Little Means So Much. They identify our mental capacity as bandwidth, and explain it like this:

We can measure fluid intelligence, a key resource that affects how we process information and make decisions. We can measure executive control, a key resource that affects how impulsively we behave. And we find that scarcity reduces all these components of bandwidth—it makes us less insightful, less forward-thinking, less controlled. And, the effects are large. Being poor, for example, reduces a person’s cognitive capacity more than going one full night without sleep. It is not that the poor have less bandwidth as individuals. Rather it is that the experience of poverty reduces anyone’s bandwidth. (1)

Mullainathan and Shafir go on to explain other kinds of scarcity like not having enough time, or friends, or food and that scarcity operates on top of culture, economic forces and personality.

It is so easy to judge other people and label them lazy, or as Congressman Paul Ryan has noted, “We don’t want to turn the safety net into a hammock that lulls able-bodied people into complacency and dependence.”

I don’t think wanting to be dependent is a natural human tendency. What I saw in my prison students was how much my students wanted self-reliance and self-worth. Once they figured out how to become competent students, they worked hard. Looking ahead to getting out, they wanted jobs. Maybe if we examined our own experiences of scarcity, we would understand other groups and why they seem to make “poor choices.” I’ve often wondered what I would do if I were constantly worried about the basics like housing and food—or worse, if my children were constantly hungry or we were facing homelessness. I don’t think I would do very well, nor would I be working on long-term goals.

1.  Mullainathan, Sendhil and Shafir, Eldar, Scarcity: why having too little means so much, p. 13.