I just happened to notice this Atlantic piece asking the logical question in the Aaron Swartz aftermath: now what? Having recognized that a problem exists, what are we going to do about it? Or, realistically, what can we do about it? The piece relies on this brief by LawProf Instapundit Glenn Reynolds. It’s only about 6 pages.

The Atlantic piece – and by extension Reynolds’ brief – are a listing of the usual bad ideas – make the state pay the legal bills of acquittees, ban plea bargains altogether (NO! BAD DOG!) – thrown in with some good ones.

But let’s start with where I left off with my previous post: if we are to have a serious discussion, then it should be an honest discussion. One that acknowledges that if the system is indeed flawed, it is flawed when it comes to all people. So when Reynolds writes:

Most of us remain safe. Prosecutors have limited resources, and there are political constraints on egregious overreaching.
And, most of the time, prosecutors can be expected to exercise their discretion soundly. Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act badly because of politics or prejudice.
Limited resources or not, a prosecutor who is anxious to go after a political enemy will always find sufficient staff to bring charges, and political constraints are least effective where a prosecutor is playing to public passions or hysteria.

It is easy to dismiss him as mighty naive (or professorial?) for believing that there is an “us” or that prosecutors only overreach in political cases. The biggest transgressions occur when no one is looking; outside of the glare of the media and in the dark shadows of the assembly line productions. That is the problem and folks like Reynolds and Conor Friedersdorf at The Atlantic miss the point entirely by assuming that mostly everything is kosher or that due process serves as an effective counter to any improper charging.

But I give them credit for trying because it’s not an easy thing to tackle. The suggestion, ultimately, is that the entire criminal justice system is flawed. And how do we repair it so as it make it more…just.

Two of the ideas proposed by Reynolds (and one by Orin Kerr) deserve scrutiny: giving prosecutors only qualified immunity for their actions and that too only when they act in bad faith (after all, like the law and order crowd likes to say: if you’ve done nothing wrong, you’ve got nothing to fear) and the more intriguing idea: permitting juries and judges to know of plea bargains when sentencing.

Typically judges who sentence after a trial aren’t the same judges who preside over pre-trial negotiations and there’s a a prohibition on that judge knowing the details of the offer. More often than not, the side that wants to keep the pretrial offer secret is the prosecution: and for good reason. Offers before trial are significantly lower than what the same defendant gets after a trial. If judges were made aware of what the parties thought was appropriate, it might deter them from throwing the hammer at defendants. Or maybe we’d still get 100 year sentences. But odds are that some might think twice. This would certainly be the case if juries were given the power to sentence defendants.

Kerr’s idea is equally intriguing: eliminating the jury’s temptation to “split the verdict” when faced with multiple counts:

Multiple overlapping crimes gives prosecutors an unfair advantage at trial that in turn pressures defendants unfairly to take a guilty plea. That’s the case because the jury is easily misled. When the jury sees a multi-count indictment involving many different crimes, the jurors have two natural reactions. First, they think they can “split the difference” and convict on some but not all. This is just wrong, as it turns out; at sentencing, a conviction as to only one crime is treated just as severely as a conviction as to all crimes. But the jury doesn’t know that, giving the prosecution an advantage. Relatedly, the jury likely thinks that the defendant’s conduct is extra serious if it is charged under lots of criminal offenses instead of one. The existence of multiple overlapping crimes therefore gives the prosecutors an unfair advantage; the answer is to narrow that advantage by eliminating entirely duplicative crimes.

If you’ve practiced here in CT – and I’m sure if you haven’t, your state has an equivalent – then you know that the worst offender is the Risk of Injury statute. It means nothing and everything all at once.

But these are piecemeal solutions that are inadequate and incomplete. For these problems with the system that we decry will remain so long as people believe that the system exists for guilty people only. We need to change the perception; to alter the dialogue. Until people stop asking “how can you defend those people?”, the system will remain broken.

An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity.

It’s been 10 days since Aaron Swartz killed himself, facing down the barrel of a gun pointed by within-their-rights-but-a-tad-too-zealous federal prosecutors. Plead to 13 felonies and we’ll recommend “only” 6 months in jail, he was told. His apparent crime was of such magnitude and caused such harm that civil disobedience was not seen for and treated as it was.

Swartz was many things that are better left to others (and I’m sure you’ve read them all by now), but the growing sentiment is that he was also a victim. Despite being a defendant, he was the victim of a criminal justice system that was too harsh. On him. He’s being hailed as a hero; a martyr; the future of disobedience and because of that, an example to be made.He’s the catalyst for change: for alterations to the federal statute and for closer scrutiny of the DOJ (albeit the latter is probably more political than anything). And undeniably, the din of criticism of prosecutorial discretion in this case is loud (make sure you read this lengthy piece by Radley Balko on the power of the prosecutor and this one by Glenn Greenwald: there aren’t two people who’re doing more good work on the ever-growing unchecked power of the state).

To all of you who’ve been engrossed by the above; shocked by it, angered, even, I say: welcome to the real world. Welcome to the world that’s existed around you for decades, but that you’ve been too blind to see.

Because Aaron Swartz wasn’t special. Not in that sense. He was just like every other criminal defendant that walks through the doors of every courthouse in America: a conviction waiting to happen. He was an opportunity for someone to flex their muscle over; for someone to teach a lesson to; for a system to fail to live up to its promise. Aaron Swartz is no different that the guy who sat in jail for 5 years waiting for a trial, or the guy who was arrested 20 years after the crime and the Supreme Court changed substantive law just to ensure that he was prosecuted, or the guy in whose case the judge texted the prosecutor questions to ask, or the man who refuses to give up his First Amendment rights and keeps getting arrested or the inmate who loses his appeal because his lawyer didn’t file the right paperwork and the courts don’t care, or Ronald Cotton or Cameron Todd Willingham, or maybe tomorrow: you. In the eyes of the law, there was no difference between any of them: their crimes may have been disparate; their rights all the same to eviscerate.

This happens every day: we have less rights today than we did 10, 15, 20 years ago. And they keep getting curtailed. Because you don’t care. Don’t look at me; I care. I scream about it on this blog every chance I get. But you don’t listen. Because it doesn’t happen to you. It doesn’t happen to people you know. It doesn’t happen to people you like. Because they aren’t you.

First they came for the terrorists, and I didn’t speak out because I wasn’t a terrorist. Then they came for the criminals, and I didn’t speak out because I wasn’t a criminal. Then they came for the people they didn’t like, and I didn’t speak out because I wasn’t one of them… well, shit, there’s no one left but you and me.

There are only two kinds of people: those that they’ve come for and those that they’re coming for. And now what? Now that they came for your savant, your gentleman hacker; your prodigy and he took his life; what’s next? Why do you think they won’t come for you? What makes you that much better able to fend off their might? [Update: And when Carmen Ortiz says she won't do business any differently, do you think she's joking? Do you want to be the next defendant she's prosecuting?

And while it speaks volumes about her ego, her position is the clearest indication that it wasn't Aaron Swartz's case that was singled out for preferential treatment. This is how they do business. In every case. And if you think that there was injustice in Swartz's case, then doesn't it stand to reason that there's injustice in the murderer's case or the rapist's case or the bank robber's case?]

If you’ve started caring now, will you stop? Or have you finally realized that “they” have always been “us”? That we’re one overzealous officer or one slightly difficult prosecutor away from being Aaron Swartz. Aaron Swartz became one of “them”. Which one are you?

———–

The quote that starts this post is by Dr. Martin Luther King, Jr.

The more one is utterly alone, the more the mind comes to reflect the cell; it becomes blank static…  Solitary confinement is not some sort of cathartic horror of blazing nerves and searing skin and heads smashing blindly into walls and screaming. Those moments come, but they are not the essence of solitary. They are events that penetrate the essence. They are stones tossed into an abyss. They are not the abyss itself…  Solitary confinement is a living death. Death because it is the removal of nearly everything that characterizes humanness, living because within it you are still you. The lights don’t turn out as in real death. Time isn’t erased as in sleep…

That is the only scrap of Shane Bauer’s diary that made it out with him when he was released after 26 months in solitary confinement. In Iran. Remember him? He’s the guy who was arrested by Iranian authorities along with two other Americans and charged with espionage or some such nonsense. The first was released after 13 months, Shane and another after 26. The above quote comes at the very end of a lengthy piece written by him in MotherJones about his experience visiting and investigation into California’s living, breathing torture experiment: the Segregated Housing Units.

Initially designed to isolate disruptive inmates for up to 18 months, the SHUs are now long-term, indefinite torture chambers, and the longest an inmate has been kept in isolation is forty-two years. I’m willing to bet that’s longer than many readers of this blog have been alive.

Bauer makes this stunning comparison between the conditions at SHU at his in Iran:

“So when you’re in Iran and in solitary confinement,” asks my guide, Lieutenant Chris Acosta, “was it different?”

…

I want to answer his question—of course my experience was different from those of the men at California’s Pelican Bay State Prison—but I’m not sure how to do it. How do you compare, when the difference between one person’s stability and another’s insanity is found in tiny details? Do I point out that I had a mattress, and they have thin pieces of foam; that the concrete open-air cell I exercised in was twice the size of the “dog run” at Pelican Bay, which is about 16 by 25 feet; that I got 15 minutes of phone calls in 26 months, and they get none; that I couldn’t write letters, but they can; that we could only talk to nearby prisoners in secret, but they can shout to each other without being punished; that unlike where I was imprisoned, whoever lives here has to shit at the front of his cell, in view of the guards?  ”There was a window,” I say.

…

Here, there are no windows.

(Click here to view an interactive graphic of a representative cell at Pelican Bay. Note the lack of windows.) The secretive, illusory and disingenuous policies that lead prisoners into solitary in California are shameful and horrifying. From possessing the wrong picture, to being in a picture with someone who was only confirmed to be a gang member later on, inmates have no recourse to their being sent into isolation for 6 years at a time. The flimsiest of evidence can renew that condemnation for another 6 and so on, in perpetuity.

While the body might make it that long, the human mind absolutely cannot. Shane again:

As I read the medical literature, I remember the violent fantasies that sometimes seized my mind so fully that not even meditation—with which I luckily had a modicum of experience before I was jailed—would chase them away. Was the uncontrollable banging on my cell door, the pounding of my fists into my mattress, just a common symptom of isolation? I wonder what happens when someone with a history of violence is seized by such uncontrollable rage.

A 2003 study of inmates at the Pelican Bay SHU by University of California-Santa Cruz psychology professor Craig Haney found that 88 percent of the SHU population experiences irrational anger, nearly 30 times more than the US population at large.  Haney says there hasn’t been a single study of involuntary solitary confinement that didn’t show negative psychiatric symptoms after 10 days. He found that a full 41 percent of SHU inmates reported hallucinations. Twenty-seven percent have suicidal thoughts. CDCR’s own data shows that, from 2007 to 2010, inmates in isolation killed themselves at eight times the rate of the general prison population.  In the SHU, people diagnosed with mental illnesses like depression—which afflicts, according to Haney, 77 percent of SHU inmates—only see a psychologist once every 30 days.

Anyone whose mental illness qualifies as “serious” (the criterion for which is “possible breaks with reality,” according to Pelican Bay’s chief of mental health, Dr. Tim McCarthy) must be removed from the SHU. When they are, they get sent to a special psychiatric unit—where they are locked up in solitary. Some 364 prisoners are there today.

Dr. Karen Franklin has a further explanation on the horrifying effects of isolation:

[P]risoners who have spent a mind-boggling one to two decades in solitary confinement describe an inexorable descent into hopelessness and despair, with crippling loneliness and a constant struggle to stave off psychosis. They report pervasive insomnia, anxiety, hallucinations, mood swings, violent nightmares, panic attacks and a profound rage that they attempt to stifle by numbing all feeling. One prisoner described feeling like “walking dead,” while another said he hears disembodied voices and feels like he is “silently screaming 24 hours a day.”

…

Over time, prisoners can barely recall what it feels like to experience physical contact with another human being. Luis Esquivel, for example, has not shaken another person’s hand in 13 years and fears that he has forgotten the feel of human contact; “he spends a lot of time wondering what it would feel like to shake the hand of another person,” according to the class-action lawsuit.

That is what we’re doing: we’re stripping these people naked. Naked of the very things that make them human. We are experimenting on our own kind; turning people into lab rats, to see what happens when reach deep into our core and wrench out that very thing that makes us a step higher on the evolutionary chain: our soul. And we do this without batting an eyelid; we justify this with preposterous excuses about retribution and safety, when in essence this is nothing more than an abuse of power and a manifestation of a God-complex. We have turned on each other in ways that animals never would. We are not only destroying the souls of those we seek to punish, but foregoing any hope for the redemption of our own.

The idea of solitary confinement is frightening. The experience itself must be nothing short of torture. And yet this is considered acceptable in this most civilized of nations in the world; the gold standard in the treatment of human beings; the foremost finger-pointer at the inhuman activities of others.

We may be the world leader in capitalism; the land of opportunity and economic progress. But when it comes to that which happens within our borders, where our real soul is exposed, we are no better than those who we regularly condemn. From out treatment of minorities, to our treatment of children and the mentally ill, our hypocrisy is palpable. The rosy, shining and pristine exterior that we present to the world has come at a terrible expense: our core is rotten. We have willingly turned a blind eye to the torture of our own humanity.

March 27, 2012

…Like you, I know what it is like to have our very existence internalized to the point of kissing Siren on the lips while she guided us to the rocks of insanity. Then, wondering if we’d ever escape her spell. Fortunately we both did. But as you will learn about you and me, we did not come out unscathed. At times…I mourn the solitude of days gone past. Days where time lost all meaning; to the point where I knew not if I was alive or dead; and where sometimes I did not care either way…

—Steve Castillo

I have no more words; only tears.

[I've written about solitary confinement before: here and here.]