Not a monster: Society’s creation of men who use violence

—Hillary Potter

The surveillance video footage released this week that depicts professional football player Ray Rice rendering Janay Rice unconscious with a single punch seems to have evoked a fairly unified opinion of Mr. Rice’s actions and how he should be sanctioned. It appears most of the public sentiment about Mr. Rice’s brutal actions is condemnation of the assault. These denunciations came in the form of calls for Mr. Rice’s permanent ousting from the National Football League and for Rice to be criminally prosecuted and incarcerated​—all of which satisfy standards of punishment in U.S. society.

Although already sanctioned months ago by the NFL commissioner with a two-game suspension after the release of a video that captured images after the assault took place, the commissioner and Baltimore Ravens management levied heftier sanctions. The collective public cheer for the swift actions of Ravens management and the NFL to, respectively, release and suspend Mr. Rice is welcomed in the wake of the often racially divided responses to last month’s shooting death of unarmed Black teen Michael Brown by white police officer Darren Wilson in Ferguson, Missouri. As a scholar and activist who critically interrogates the roles and impacts of race, gender, and socioeconomics on crime, criminality, and criminal legal procedures, I am pleased the NFL is no longer maintaining its complicity in Mr. Rice’s violent actions toward a person he presumably loves.

Aside from my personal concern for gendered violence, which overwhelmingly finds girls and women as the targets or victims of this form of transgression, this case seized my attention because of my research that especially focuses on the intersecting role of race, gender, and socioeconomics in the manifestation of and responses to intimate partner abuse and violence. The tactics used by abusers to control and harm their mates (and their children) have little variance across race, culture, and class; what frequently varies are responses by victims, family and friends of the couple, legal system officials, and factions of the general public because of distinct sociocultural views, values, and customs.

I have read and heard recent comments about Mr. Rice referring to him as a monster, an animal, and a “piece of shit.” Whether there is video documentation or not, I wish that assaultive behaviors like Mr. Rice’s​—by men of any race​—would always produce such a visceral reaction by others and I hope the average person is always disturbed by abuse and violence subjected on girls and women by their so-called partners.

There is, however, a minority who essentially supports Mr. Rice’s actions because of a perception that Ms. Rice slapping at or spitting on Mr. Rice was provocation or justification for Mr. Rice’s assault. In my research, victims are placed at the center of the analysis and I view them as the experts in their lived experiences. This must also be the way we consider the present case. The brutality against Ms. Rice must remain central to this case, but only to the extent that she is not blamed for Mr. Rice’s actions. Furthermore, that the couple married after the assault is not to be judged by those who are not privy to Ms. Rice’s experiences and emotions. Many women remain in relationships with abusive mates for a variety of reasons, and it behooves uninformed purveyors of this case to educate themselves on the virtual entrapment of women subjected to abuse by their intimate partners.

Those who victimize others must also be placed at the center of the analysis. However, deeming Mr. Rice a monster, an animal, or a “piece of shit,” serves no one. This labeling is a copout. To simply call Mr. Rice a monster​—just as is done with serial and mass murderers​—is easy, because doing so distances the abuser from the “regular guy,” and explaining abusive and violent behaviors without tenuous biological or supernatural explanations is complex, confusing, and messy. But we must reflect on the social and cultural mechanisms of our society that instill and preserve violent and controlling behaviors in our boys.

Once we recognize and acknowledge sociocultural explanations for abuse and violence, we are forced to acknowledge our role as a society in creating these “monsters.” Indeed, we know that many regular guys are abusers. The regular guy who abuses girls and women often operates in clandestine locations (such as the home) or his behaviors are known or seen by others who do not or cannot confront the regular guy’s abusive behaviors. But some regular guys who violate others are exposed. Ray Rice, in effect, is a regular guy.

I also believe aiming the mirror on society’s self will push us toward a criminal legal system that rejects ineffective punishment and banishment methods and adopts a system focused on accountability, healing, restoration, rehabilitation, and treating each other with humanity. To be sure, this notion is the basis of President Obama’s My Brother’s Keeper initiative that seeks to ensure boys and young men of color are provided with the resources necessary to realize socially productive and healthy lives. Although the initiative has been duly criticized for overlooking analogous plights faced by girls and young women of color, it has generally been accepted as “the right thing to do” to provide boys and young men of color with equal opportunities for success as their white counterparts.

Thus, even as a Black feminist criminologist who knows, works with, advocates for, and gathers personal stories from women victims of intimate partner violence, I promote and believe in a restorative and transformative approach that does not desert the abusive and violent men that our society has produced. These abusive men were once harmless young boys, but were ultimately “trained” by the best to become violent and controlling. They were trained by the gendered customs that are permeated throughout our society and have been transmitted through the generations for generations. Today’s abusive men were schooled in social scripts that trained them that girls and women are inferior to males; therefore, it is their right as men to control “their women” in any ways they see fit. This patriarchal training program spans a broad range of abusive and controlling behaviors, some of which involve blatant physical violence and others that result in discriminatory employment, legal, and social policies that suppress girls and women.

As the sports-based saying goes, “don’t hate the player, hate the game.” Ray Rice is not a rare, unexplainable creature, and Janay Rice is not to blame. Ray Rice must be held accountable for his actions, but we must also place universal blame in the societal norms that social institutions and members of our society continue to espouse, and that too many men (and some women) are too complacent with and too fearful to abandon.

Hillary Potter, a resident of Denver, Colorado, is a professor in the Department of Ethnic Studies at the University of Colorado at Boulder. She is the author of Battle Cries: Black Women and Intimate Partner Abuse (NYU Press, 2008).

Doing justice to Mandela’s legacy

—Robert N. Kraft

A remarkable set of events occurred in South Africa in the final half decade of the 20th century – events that are now mostly forgotten. In the outpouring of tributes to Nelson Mandela’s life and leadership, many people remembered his transcendent wisdom in negotiating the stormy transition from apartheid to democracy and his triumphant victory in May of 1994 as South Africa’s first democratically elected president, but few recalled the truth commission that followed.

In 1995, guided by President Mandela and mandated by an act of Parliament, South Africa created the Truth and Reconciliation Commission (TRC), a massive, temporary institution whose mission was to reveal the specifics of widespread human rights abuses and to begin repairing the damage from nearly half a century of brutal repression known as apartheid.

To appreciate the magnitude and merit of Mandela’s accomplishments as a national conciliator requires traveling back in time – to South Africa in the middle of 1990, shortly after Mandela’s release from prison in the forty-second year of official apartheid.  When Mandela emerged as the chief negotiator for the African National Congress, he faced not only an entrenched apartheid government but also the beginning of unprecedented volatility in the provinces of South Africa.

From July 1990 to April 1994, nearly 14,000 people died in politically motivated violence, a rate of more than 300 deaths a month. Transposed to the present population of the United States, that would be 110,000 deaths due to political violence in a four-year period – or 2,300 deaths every month. Neither the difficulty nor the urgency of Mandela’s task should  be underestimated.

After his election to the presidency, Mandela then worked with a diverse group of leaders to manage the aftermath of apartheid. The result was the TRC. To accomplish its eponymous goals of gathering truth and promoting reconciliation, the TRC obtained testimony from the victims and the perpetrators of apartheid. Victims gave testimony to the Human Rights Violations Committee to document the crimes committed against them and their families and to apply for reparations. Perpetrators gave testimony to the Amnesty Committee to inform the nation of the specific crimes they carried out during apartheid and to obtain amnesty for these crimes – acts that were illegal even under apartheid law. If the crimes were judged to be politically motivated, and if the perpetrators made full disclosure, they were given amnesty.  Freedom was granted in exchange for truth.

Listening to the victims’ stories made sense for healing the wounds of apartheid, but the idea of granting amnesty to violent perpetrators faced understandably passionate opposition. Heinous crimes had been committed. Tens of thousands of people had suffered lasting harm from these specific crimes, and millions had endured profound hardship due to the laws of apartheid. One reasonable approach, then, would be to punish those who had committed the wrongdoing. (After all, Franz Kafka wrote The Penal Colony – not The Reconciliation Colony, and Dostoyevsky did not write Crime and Amnesty.)

Set in motion by the forceful persuasion of Nelson Mandela and Desmond Tutu, the amnesty hearings proceeded – from 1996 to 2001. Acting as an itinerant axis mundi, the Amnesty Committee moved from Durban to Pretoria to Johannesburg to East London to Pietermaritzburg to Cape Town, hearing hundreds of amnesty cases and sending several resonant messages throughout South Africa: truths about widespread human rights violations will be uncovered, secrets of illegality will be disclosed, government crimes will be illuminated, and perpetrators will be held publicly accountable for their crimes.

In part, the TRC has faded from view for most of us because it occurred during an obscure period of time: in the words of noted correspondent Rupert Hart-Davis, “too old to be news and too young to be history – the day before yesterday.” Yet it was the TRC that transformed an emerging set of principles for finding truth and resolving long-term national conflicts into an established tradition, a tradition that continues today in those countries working to adapt its principles to their own traditions.

Two truth commissions completed their work just last year – the Gacaca system in Rwanda and the Truth, Justice and Reconciliation Commission in Kenya. In Canada, a truth commission is currently in operation, endeavoring to investigate and repair the damage inflicted by more than 120 years of the Canadian government’s program of Indian Residential Schools (www.trc.ca).  Each of these commissions drew on the work of the South African TRC.

For those countries traumatized by widespread injustice or sustained violence, the findings of the TRC represent news in the making, but for the rest of the world, the TRC remains the day before yesterday. Over the next generation, however, as policy makers and community leaders continue to study the TRC, awareness of its principles will grow and propagate. Within a generation, the TRC is likely to become both news and history. Even with its flaws and limitations, the TRC stands as an enduring example of the potential for restorative justice on a national scale and a prototype for other national truth commissions.

More generally, after the foundational concepts of restorative justice enter the cultural lexicon, it is only a matter of time before they enter political discussions and national public policy. For many nations, Nelson Mandela’s South African legacy will then become bold possibility – a realistic solution for investigating and reconciling large-scale violations of human rights and constitutional guarantees. Indeed, we may someday see such a truth commission in the United States.

Robert N. Kraft is author of Violent Accounts: Understanding the Psychology of Perpetrators through South Africa’s Truth and Reconciliation Commission (forthcoming from NYU Press, 2014).

“I can’t call the police—he is the police”: Intimate partner abuse by police officers

—Leigh Goodmark

On May 7, 2013, law enforcement was called to the home that Kendra Diggs shared with her boyfriend, Baltimore City police officer James Walton Smith. After hearing a woman crying for help, the officers kicked in the door and removed Diggs from the home. Smith, who was off-duty at the time, ran upstairs, ignoring officers’ pleas to stay to talk.  While officers stood with a bleeding Diggs on the sidewalk, a shot rang out from a second floor window. Diggs, shot fatally in the head, fell to the ground as officers ran for cover. On Monday, August 5, 2013, Smith killed himself in jail while awaiting trial for Diggs’ murder.

What happened to Kendra Diggs is far from an isolated incident. Research shows that intimate partner abuse is two to four times more prevalent in the families of police officers than in the overall population. During the same week that James Walton Smith killed himself, the Cato Institute’s National Police Misconduct Reporting Project documented six other claims of intimate partner abuse involving police officers. Some of these cases have made national news in recent years, such as the 2003 murder of Crystal Brame by her husband, Tacoma police chief David Brame; as well as the domestic violence allegations faced by San Francisco sheriff Ross Mirkarimi in 2012. (Brame committed suicide after killing his wife, while Mirkarimi was reinstated as sheriff after pleading guilty to the false imprisonment of his wife.)

Because of their training, police officers can be particularly dangerous abusers.  As Diane Wetendorf, an expert in officer involved domestic violence, explains, police officers are taught how to intimidate suspects, conduct surveillance, find someone who doesn’t want to be found, and interrogate suspects. Police officers expect compliance with their orders, bolstered by the authority granted to them by the state. Officers learn how to use force without causing serious bodily injury. When used to protect the public, these are all valuable and important skills. When used against an intimate partner, they can be devastating.

The partners of police officers may have few options available to them for addressing their abuse. Most police departments have no specific policy for responding to intimate partner abuse perpetrated by one of their own, despite the efforts of the International Association of Chiefs of Police, which promulgated a model policy in July 2003. Officers’ intimate partners fear calling the police, because he is the police. They are well aware, too, of the culture of silence that cloaks officers’ actions. They know that their partners are well versed in courtroom procedures and are known and respected by judges and prosecutors—making the prospect of court proceedings daunting. Their abusers have access to information systems that allow them to track their partners. They know where the shelters are and often have working relationships or are engaged in collaborations with shelter staff and service providers. Officers’ partners also know that pursuant to federal law, a domestic violence conviction means the officer will lose his gun, and therefore his job, making him that much more vindictive and dangerous. In a society in which the primary response to domestic violence is through the criminal legal system, the partners of police officers often have nowhere to turn.

How can we better protect the intimate partners of police officers? Urging local police departments to adopt strong policies for addressing intimate partner abuse by officers would be a good start. But it is also worth questioning the nature of our response to intimate partner abuse more generally. Should the criminal justice system be the primary response to domestic violence in a country where police officers are disproportionately committing such abuse? Providing options beyond the legal system would help many people subjected to abuse, but few would benefit as much as the partners of abusive police officers.

Leigh Goodmark is Professor of Law, Director of Clinical Education, and Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law, and is currently a Visiting Professor of Law at the University of Maryland Francis King Carey School of Law. She is the author of A Troubled Marriage: Domestic Violence and the Legal System (new in paperback from NYU Press).

We are all George Zimmerman: Trayvon Martin and the youth control complex

—Victor Rios

In ten years of studying inner city boys labeled at-risk by law enforcement and schools, I have found that poor Black Americans and Latinos are often deemed as culprits, lost causes, and menaces to society. One Black American boy in my study reported that on the day he was born nurses at the hospital commented in front of his mother, “Poor boy. He’s destined to become a dope dealer or drug addict just like his mother.”

In my observations at schools I witnessed a teacher tell a truant Latino eighth grade boy, “You have a prison cell waiting for when you turn eighteen.” On the streets I witnessed a police officer tell a seventeen year old Black American boy, “We want you to kill each other off, that way we don’t have to deal with locking you up.” These kinds of examples are countless in the lives of over 200 boys that I have interviewed and shadowed.

The reality is that poor urban boys grow up surrounded by a system of punitive social control that sees them as deficient students and criminal suspects that must be controlled and contained from young ages. School officials, law enforcement personnel, neighborhood watch volunteers, store clerks, jurors, and everyday citizens perceive and interact with these young people with fear, disdain, and circumspection. This youth control complex, a collective system of negative treatment based on racialized fears of young people of color, is responsible for the criminalization and systematic stripping of dignity that many young people like Trayvon Martin encounter on a day-to-day basis.

George Zimmerman is not just an outlying overzealous rogue vigilante that hunted down an innocent Black American boy. He very much represents mainstream America. We–schools, law enforcement, the media, intellectuals, politicians, and everyday citizens–are all involved in a system that creates and perpetuates fear and outcaste of a vulnerable, marginalized segment of our population. These young people grow up feeling hopeless, undignified, and failed by the system.

As Ronny, a seventeen year old Black American boy I followed for three years puts it, “It’s like I’m invisible, like I don’t exist, like people see me as good for nothing but to be in jail.” This youth control complex produces social death among many young people of color; they are alive but are not recognized as fellow human beings with the right to live productive lives. Instead we rely on surveillance, policing, prison bars, and stand your grounds laws to control, contain, incapacitate, and eliminate them.

The difference between George Zimmerman and the rest of us is that he pulled the trigger. We simply continue to mundanely mete out punitive treatment, stigma, and systematic stripping of dignity to young people of color, slowly killing their soul and their right to pursue happiness. By the time we sit in a courtroom to determine whether Trayvon Martin’s life is worth imposing a sanction on George Zimmerman, five white jurors have already been socialized and acculturated to criminalize young racialized bodies and to view the victim as a culprit.

Politicians and school and law enforcement administrators (including those that supervise neighborhood watch programs) must demand that individuals who interact with a diverse population be trained in understanding their cognitive biases and how these inform the treatment they impose on others. We must train ourselves to recognize and eliminate our inclinations to perceive and treat young people of color as suspects and instead treat them with the dignity they deserve. Listening to the voices of young people themselves who have lived a lifetime of encounters with the youth control complex might be a good first step.

Dr. Victor Rios is a  Professor of Sociology at the University of California, Santa Barbara. He is the author of Punished: Policing the Lives of Black and Latino Boys (NYU Press, 2011) and Street Life: Poverty, Gangs, and a Ph.D.

Zimmerman verdict rooted in segregated neighborhoods

—Jeannine Bell

[This article originally appeared in the San Francisco Chronicle.]

George Zimmerman will not be the last vigilante to stand trial for the killing of an unarmed black teen. While it is convenient to blame the law, such as “make my day” or “stand your ground” laws such as Florida’s, for failing to protect Trayvon Martin and other innocent young black men assumed to be suspicious, the root of this problem lies much deeper in America’s maintenance of all-white neighborhoods.

More than 40 years after the passage of the Fair Housing Act, most housing in America remains segregated along racial lines. Census data from 2010 show that the average white person lives in a neighborhood that is 75 percent white. The average black person lives in a neighborhood that is only 35 percent white.

Income and the size of one’s housing allowance, according to scholars, do not help most blacks escape segregation. Research also shows that minority neighborhoods lack the better schools and other amenities.

The causes of housing segregation are varied. To be sure, some blacks may elect to avoid living in majority white neighborhoods. One reason is violence. Zimmerman is not the first armed individual seeking to protect his neighborhood from someone he deemed an outsider.

In my research, I have chronicled hundreds of incidents between 1990 and 2010 in which whites targeted minorities who moved into their neighborhood. Cross burning, scrawled slurs and personal assaults- such violence occurs in upscale and working-class neighborhoods alike, in every area of the country, without regard to the wealth or poverty of the minorities moving in.

Blacks living in majority-white neighborhoods also face problems when inviting friends or relatives to visit. Martin’s killing highlights the vulnerability of these guests to white stereotyping that sees these black visitors, who dare to cross the color line, as potential criminals.

It is not disputed that Zimmerman initiated the encounter with Martin when he deemed the young man suspicious. It was only Martin’s blackness, not his size, nor his age, nor his behavior that sparked Zimmerman’s initial concern. Zimmerman argued that he feared for his life when his supposed assailant was an unarmed teenager he outweighed by more than 100 pounds.

Too many Americans are harmed by what I have termed the “integration nightmare.” They assume that “good” and “safe” neighborhoods are neighborhoods without black people in them. Thus, they see the arrival of black neighbors as disruptive; they see more diversity as threatening.

Ironically, the initial disruption to these white residents is psychological – the fear that more blacks will follow and that their guests will be criminals. When violence follows, it is usually initiated by whites acting out their irrational fears.

Nothing can bring back Martin, but as a society perhaps we can learn from the circumstances of his death. To prevent killings and other violence, we need to think differently; in particular, we need to recognize the value of racial and ethnic diversity in America’s neighborhoods.

Our strength as a nation lies in our learning from one another and building upon our common humanity. There is no better way to reduce the polarizing violence and politics than building integrated social networks based on living in proximity to one another.

Segregation needs to finally die and the integration nightmare is just that, a bad dream with little basis in reality.

Jeannine Bell is a professor at Indiana University Maurer School of Law and author of Hate Thy Neighbor: Racial Violence and the Persistence of Segregation in American Housing (NYU Press, 2013).

George Zimmerman, Not Guilty: Blood on the leaves

—Jelani Cobb

[This article originally appeared in The New Yorker.]

The not-guilty verdict in the George Zimmerman trial came down moments after I left a screening of “Fruitvale Station,” a film about the police-shooting death of Oscar Grant four years ago in Oakland. Much of the audience sat quietly sobbing as the closing credits rolled, moved by the narrative of a young black man, unarmed and senselessly gone. Words were not needed to express a common understanding: to Zimmerman, Trayvon Martin, the seventeen-year-old he shot, fit the description; for black America, the circumstances of his death did.

The familiarity dulled the sharp edges of the tragedy. The decision the six jurors reached on Saturday evening will inspire anger, frustration, and despair, but little surprise, and this is the most deeply saddening aspect of the entire affair. From the outset— throughout the forty-four days it took for there to be an arrest, and then in the sixteen months it took to for the case to come to trial—there was a nagging suspicion that it would culminate in disappointment. Call this historical profiling.

The most damning element here is not that George Zimmerman was found not guilty: it’s the bitter knowledge that Trayvon Martin was found guilty. During his cross examination of Martin’s mother, Sybrina Fulton, the defense attorney Mark O’Mara asked if she was avoiding the idea that her son had done something to cause his own death. During closing arguments, the defense informed the jury that Martin was armed because he weaponized a sidewalk and used it to bludgeon Zimmerman. During his post-verdict press conference, O’Mara said that, were his client black, he would never have been charged. At the defense’s table, and in the precincts far beyond it where donors have stepped forward to contribute funds to underwrite their efforts, there is a sense that Zimmerman was the victim.

O’Mara’s statement echoed a criticism that began circulating long before Martin and Zimmerman encountered each other. Thousands of black boys die at the hands of other African Americans each year, but the black community, it holds, is concerned only when those deaths are caused by whites. It’s an appealing argument, and widespread, but it’s simplistic and obtuse. It’s a belief most easily held when you’ve not witnessed peace rallies and makeshift memorials, when you’ve turned a blind eye to grassroots organizations like the Interrupters in Chicago, who are working valiantly to stem the tide of violence in that city. It is the thinking of people who’ve never wondered why African Americans disproportionately support strict gun-control legislation. The added quotient of outrage in cases like this one stems not from the belief that a white murderer is somehow worse than a black one but from the knowledge that race determines whether fear, history, and public sentiment offer that killer a usable alibi.

The thousands who gathered last spring in New York, in St. Louis, in Philadelphia, in Miami, and in Washington, D.C., to demand Zimmerman’s arrest shared a narrative and an understanding of the past’s grip on the present. Long before the horrifying images of Martin lying prone and lifeless in the grass ever made their way to Gawker, he’d already begun inspiring references to the line about “blood on the leaves” from Billie Holiday’s “Strange Fruit.” Those crowds were the response of people who understand that history is interred in the shallowest of graves.

Yet the problem is not that this case marks a low point in this country’s racial history—it’s that, after two centuries of common history, we’re still obligated to chart high points and low ones. To be black at times like this is to see current events on a real-time ticker, a Dow Jones average measuring the quality of one’s citizenship. Trayvon Martin’s death is an American tragedy, but it will mainly be understood as an African-American one. That it occurred in a country that elected and reëlected a black President doesn’t diminish the despair this verdict inspires, it intensifies it. The fact that such a thing can happen at a moment of unparalleled political empowerment tells us that events like these are a hard, unchanging element of our landscape.

We can understand the verdict to mean validation for the idea that the actions Zimmerman took that night were those of a reasonable man, that the conclusions he drew were sound, and that a black teen-ager can be considered armed any time he is walking down a paved street. We can take from this trial the knowledge that a grieving family was capable of displaying inestimable reserves of grace. Following the verdict, Sybrina Fulton posted a benediction to Twitter: “Lord during my darkest hour I lean on you. You are all that I have. At the end of the day, GOD is still in control.” The Twitter account of Tracy Martin, Trayvon’s father, features an image of him holding Trayvon as a toddler, a birthday hat perched on the boy’s head. At the trial, they sat through a grim procession of autopsy photos and audio of the gunshot that ended their son’s life. No matter the verdict, their simple pursuit of justice meant amplifying the trauma of their loss by some unknowable exponent.

There’s fear that the verdict will embolden vigilantes, but that need not be the concern: history has already done that. You don’t have to recall specifics of everything that has transpired in Florida over the past two hundred years to recognize this. The details of Rosewood, the black town terrorized and burned to the ground in 1923, and of Groveland and the black men falsely accused of rape and murdered there in 1949, can remain obscure and retain sway over our present concerns. Names—like Claude Neal, lynched in 1934, and Harry and Harriette Moore, N.A.A.C.P. organizers in Mims County, killed by a firebomb in 1951—can be overlooked. What cannot be forgotten, however, is that there were no consequences for those actions.

Perhaps history does not repeat itself exactly, but it is certainly prone to extended paraphrases. Long before the jury announced its decision, many people had seen what the outcome would be, had known that it would be a strange echo of the words Zimmerman uttered that rainy night in central Florida: they always get away.

Jelani Cobb is Associate Professor of History and Director of the Institute of African American Studies at the University of Connecticut, and the author of To the Break of Dawn: A Freestyle on the Hip Hop Aesthetic (NYU Press, 2007). Read more of Cobb’s coverage of the Zimmerman trial via The New Yorker here.

Misunderstanding Miranda: A Miranda warning would not endanger the Boston prosecution

—David A. Harris

[This article originally appeared in the Pittsburgh Post Gazette. Read it here.]

Just hours after the second Boston bomber was taken alive, the government announced that it would not give the man Miranda warnings before questioning him. Instead, the Department of Justice said, the attacker would be questioned without warnings under the public safety exception.

The Obama administration’s interpretation of the public safety exception is suspect; its announcement that no Miranda rights would be given was transparently political, aimed at avoiding criticism from conservative quarters. Worst of all, the administration seemed to be telling the public that Miranda warnings are just petty rules—another instance of hyper-technical laws that get in the way of real justice. This is dead wrong, and it shows grave disrespect for the rule of law and the Constitution—the very things that make our country great.

Let’s start with a clear understanding of the Miranda warnings. Failing to give Miranda warnings does not interfere with the power of the police to make an arrest. Not giving the warnings does not affect the ability of the prosecution to try a suspect. In fact, not reading a suspect his Miranda warnings does not even violate the person’s rights.

The Supreme Court ruling in the Miranda case is actually quite specific: Warnings are required only if the police question a suspect while he is in custody and the district attorney wants to use the answers to prove guilt. That’s all.

If the Boston bombing suspect gets Miranda warnings and decides he wants to remain silent, won’t that destroy the case?

The simple answer is no—he will be prosecuted anyway and will very likely be found guilty, statements or not. Think of 1) the countless photos and videos, many of which show him with his brother and some of which reportedly show him leaving his backpack at the site of the second explosion moments before it occurred; 2) his statement of guilt made to a civilian during a carjacking, 3) the many officers who could testify they saw him at the shootout from which he escaped; and 4) any evidence police have seized from his home. In short, the evidence will be overwhelming; prosecutors won’t need a confession to convict him.

The idea that giving suspects Miranda warnings stops investigations cold and allows guilty criminals to go free is a myth, and it vastly underestimates the abilities of modern police officers to work successfully under the Miranda rules.

When police officers administer Miranda warnings, 85 percent of suspects talk to them anyway. For suspects with no criminal record, like the Boston bombing suspect, the number is 90 percent. Given what the warnings tell suspects—”anything you say will be used against you”—many people are shocked by this outcome. But it is human nature to talk, to explain, to avoid blame, and good police interrogators know how to take advantage of this. Miranda does not prevent them from getting the evidence they need.

In fact, the evidence in the Boston case is so great and the bomber’s guilt so certain that the suspect may wish to make statements—whether he gets Miranda warnings or not—for the purpose of avoiding the death penalty. The Miranda warnings won’t affect this.

What would happen if the suspect is questioned in custody without Miranda warnings and he makes statements of guilt?

The prosecution could not use those statements to prove his guilt, but it could still proceed with all the other evidence. And prosecutors could use answers given without Miranda warnings for purposes other than proving guilt. For example, they could still be used for intelligence purposes—to find other bombs or other people involved in the Boston plot or others. The statements also could still be used to prove the guilt of others involved under a conspiracy charge.

The government’s assertion of the public-safety exception to the Miranda rule bends that exception almost to the breaking point. The Supreme Court has said that Miranda doesn’t apply to police questioning that takes place in order to alleviate immediate, ongoing danger. But the authorities have already made clear that the Boston bad guys have been caught or killed and the danger is over. Perhaps the government might question the suspect about the existence of other explosives or plans, or whether he and his brother had other co-conspirators. But beyond those issues, the public-safety exception does not apply.

When our political leaders say that constitutional rights won’t be applied in pursuit of some greater good, they make our founding document sound like a collection of legal loopholes. They put us on the path that Ben Franklin warned us against when he wrote, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

At times like this, we need to stand strong with Boston—and with our own values. Anything less dishonors who we are.

David A. Harris is Distinguished Faculty Scholar and Professor of Law at the University of Pittsburgh School of Law. He is the author of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).

Crime and (coerced) punishment in domestic violence cases

—Leigh Goodmark

Worried that your complaining witness won’t follow through with her domestic violence complaint? New York police have a new weapon to use in such situations: running criminal checks on women who allege abuse in order to have “leverage” if they decide not to press charges.

On March 5, NYPD Chief of Detectives Phil Pulaski ordered officers to perform criminal background checks on complaining witnesses as well as alleged perpetrators in domestic violence cases. A police source told the New York Post that reminding women of their open warrants “force[s] them to remain cooperative.” Don’t want to prosecute your partner? You can go to jail instead. Advocates for women subjected to abuse are predictably outraged by the policy, arguing that it will prevent women from seeking assistance from the police. I’m outraged, too, but not surprised—this kind of policy is just another manifestation of the legal system prioritizing its needs and goals over those of women subjected to abuse.

For years, advocates for women subjected to abuse have sought to increase police involvement in domestic violence cases.  Reacting to police directives to essentially ignore domestic violence, advocates fought for mandatory arrest policies, which required police to make arrests in domestic violence cases whenever they had probable cause to do so.

New York City’s new background check policy is the logical outgrowth of such measures. If police are required to intervene, they want those interventions to be “meaningful” in the way that meaning is measured in police practice—that is, through arrest and prosecution.  When women subjected to abuse decline to press charges, they keep police from fulfilling the function that they’ve been asked to play for the last thirty years.

It’s not surprising that police would look for ways to ensure that their efforts come to fruition in some way. And in a system that routinely marginalizes women subjected to abuse by refusing to allow them to decide whether (and how) they want the state to intervene in their lives, it’s not surprising that a policy such as this one emerges.

Leigh Goodmark is Professor of Law, Director of Clinical Education, and Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law. She is the author of A Troubled Marriage: Domestic Violence and the Legal System (NYU Press, 2011).

Another “troubled marriage”: Domestic violence and the failures of legal response

—Leigh Goodmark

Melissa Davis could have prevented her husband, Daren Ruffin, from stabbing her to death last week. At least that’s the story the Baltimore Sun would have you believe. On January 24, the Baltimore Sun reported, Davis refused to testify against her husband during his January 8 trial for assaulting her, and now she’s dead. It’s that simple.

Except that it’s not that simple at all. Daren Ruffin had been repeatedly arrested and charged with abusing his wife, but those arrests had not deterred him from continuing his violence. Ruffin had just been arrested and released on his own recognizance when he returned to the apartment that the couple shared and killed his wife. A conviction might not have stopped him either; in fact, it’s possible that a conviction would have made him increase his violence against Davis. To suggest, however, that Davis could somehow have prevented her own death by simply testifying against her husband both ignores the ineffectiveness of the legal response to domestic violence and inappropriately places the blame for her death on Melissa Davis’ shoulders.

Ruffin’s actions reflect what some advocates for women subjected to abuse have known for some time—that while the legal system can help some women, the intervention of the criminal justice system means little to an abuser determined to hurt or kill his partner. Despite the infusion of hundreds of millions of dollars into the criminal justice system since the passage of the Violence Against Women Act in 1994, rates of domestic violence decreased only as much as the overall crime rate between 1994 and 2000, and less than the decrease in the overall crime rate from 2001 to 2010. Strict arrest and prosecution policies have increased the number of people arrested for domestic violence in some jurisdictions, but have not increased the conviction rate or the length of sentences served for domestic violence crimes.

There are numerous stories about the women who do everything “right”: who get protective orders, who call police, who participate in prosecution, and who still end up dead. Alison Kirby was one of those women. In March 2006, Kirby was granted a protective order after her boyfriend, Christopher McCann threatened her with violence.  On May 1, 2006, McCann followed Kirby to a Wal-Mart and stabbed her twelve times in the head, face, and arms.

Lilia Blandin was another. On October 30, 2011, Lilia Blandin pressed charges against her husband, Avery, after he punched her in the mouth and stomach. In December 2011, Avery Blandin stabbed his wife to death. Even incarceration isn’t an absolute guarantee of safety. In October 2008, Robert Ridley left the halfway house to which he had been sent to await his sentencing for setting fire to the couch in the apartment of his girlfriend, Tiffany Gates, went to Gates’ apartment, and stabbed her to death while US Marshals were waiting outside for backup before going in to help.

The legal system simply cannot guarantee safety for every woman subjected to abuse, and it does a disservice to all women subjected to abuse when we pretend that if she had just cooperated with police or prosecutors, gotten a protective order, or otherwise invoked the law, she would have been just fine.

If Melissa Davis had testified in the trial against her husband, there is no guarantee that he would have been convicted; if convicted, he would likely have been sentenced to probation. If he had received jail time, it would have been minimal at best. He might have been sentenced to batterer intervention counseling, the results of which, despite the efforts of highly trained and dedicated counselors, have been decidedly mixed, according to a roundtable convened by the Family Violence Prevention Fund and the National Institute of Justice. For some women, batterer intervention programs only exacerbate an already bad situation, making their partners angrier and more vindictive.

The reality is that cooperating with police and prosecutors is not a guarantee of safety for women subjected to abuse. To suggest that the legal system would have saved Melissa Davis if only she had cooperated with prosecutors is unfair and wrong. We don’t have foolproof responses to domestic violence, and we have been shortsighted in assuming that the legal system will safeguard women subjected to abuse. We need to both improve the legal response and to look beyond it to find ways to help women subjected to abuse achieve safety. Until we have engaged in these efforts, women like Melissa Davis will continue to be killed through no fault of their own.

Leigh Goodmark is Associate Professor of Law, Director of Clinical Education, and Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law. She is the author of A Troubled Marriage: Domestic Violence and the Legal System (NYU Press, 2011).

Announcing our Spring 2013 Catalog…

NYU Press Spring 2013 Catalog is now online, featuring an exciting range of new books in history, media studies, law, and more!

Highlights include:
TWO PRESIDENTS ARE BETTER THAN ONE: Making the case for a two-party, two-person presidency, this “pipe dream of a book” presents a “novel and provocative thesis worth hearing out” (Kirkus Reviews).

A DEATH AT CROOKED CREEK: Marion Wesson, author of best-selling and prize-winning legal novels including Render up the Body, combines drama and intrigue  with cutting-edge forensic investigation techniques and legal theory in this superbly imagined historical novel.

CAPITAL OF THE WORLD: Charlene Mires tells the dramatic, surprising, and at times comic story of hometown promoters in an extraordinary race to host the U.N. headquarters at a pivotal moment in history.

(You can also click here to access this catalog via our website, or find our catalogs available on Edelweiss.)

Following the science of eyewitness identification

—David A. Harris

decision by Oregon’s Supreme Court on eyewitness identification procedures has re-set the way that juries and courts in that state will think about eyewitness identification.

According to the New York Times editorial on the case, the ruling shifts the burden of proof to prosecutors to prove that eyewitness identifications are reliable before they can be admitted in court. Before last week’s decision, the rule had been that identifications were generally admitted; it was up to the defense in individual cases to prove that an identification was not reliable.

But at least as important as the new rule itself was the reason that the Oregon court abandoned its old precedent: the court had concluded that the old rule was based on assumptions about eyewitness testimony no longer supported by the science. Thus the new case represents a textbook case of a court forcing law enforcement away from the failed evidence of discredited methods, and toward methods that accord with what science teaches us now.

Under the old rule, Oregon judges looked at five factors when evaluating an eyewitness identification: opportunity to view the alleged perpetrator, attention to identifying features, timing and completeness of description given after the event, certainty of description and identification by witness, and lapse of time between original observation and the subsequent identification. Looking at these factors from the vantage point of the present day, the Oregon court found them “incomplete and, at times, inconsistent with modern scientific findings.” Given the science on eyewitness identification that is by now well established, the court prescribed a new approach, including the change in the burden of proof.

That’s what the Oregon Supreme Court did, but here is why they did it:

…[W]e believe that it is imperative that law enforcement, the bench, and the bar be informed of the existence of current scientific research and literature regarding the reliability of eyewitness identification because, as an evidentiary matter, the reliability of eyewitness identification is central to a criminal justice system dedicated to the dual principles of accountability and fairness.

It’s hard to imagine a better summing up of the ideas behind Failed Evidence, and why the fight to overcome law enforcement’s general resistance to science is so important.

This article originally appeared on the author’s blog—read it here.

David A. Harris is Distinguished Faculty Scholar and Professor of Law at the University of Pittsburgh. He is the author of Good Cops: The Case for Preventive Policing and Profiles in Injustice: Why Racial Profiling Cannot Work.

Why would anyone confess to something they didn’t do?

—David A. Harris

For years, I, like most people, did not believe that a person would ever confess to a serious crime he or she didn’t commit. It just seemed implausible: admitting to a crime meant you were subjecting yourself to punishment—maybe decades in prison or even death. There’s no way you’d do that unless it were true (or you were forced into it).

Of course, with DNA on the scene for more than 20 years, we know better: people do confess to crimes they did not commit, usually because of the huge pressures brought to bear on them in the interrogation room. According to the Innocence Project, about a quarter of the post-conviction DNA-based exonerations on record featured a false confession, or a false statement of guilt of some kind.

Here’s a story that makes a good example of how and why this can happen. In this case, a man named Richard Lapointe falsely confessed to a rape and murder, serving 23 years in prison as a result. Now, a court has ruled that he must receive a new trial. The flaws of Lapointe’s interrogation puts many of the major causes of false confessions on display. For example:

  • The interrogation was not recorded. Recording of interrogations can reduce false confessions and supply an indisputable record of what was said in the interrogation room.
  • The police lied to Lapointe about falsified scientific evidence. Police are allowed to lie in interrogations, but lies about scientific and forensic testing make prison seem inescapable, forcing the suspect to tell the police what they want to hear in order to stop the pressure.
  • The interrogation continued for about nine hours, far longer than average. This increases the chances of a false confession.
  • Lapointe was brain damaged, and the police knew it. Mental disabilities make false confessions more likely.

Lapointe’s case is an object lesson in what can go wrong—and what we should be doing to make sure this doesn’t happen. We should record all interrogations, front to back; prohibit lying to suspects about test results; and limit the interrogation time to two hours, with extensions—perhaps to four hours—only with a supervisor’s permission. These simple steps can keep us from hearing more stories like Lapointe’s in the future.

David A. Harris is Distinguished Faculty Scholar and Professor of Law at the University of Pittsburgh. He is the author of Good Cops: The Case for Preventive Policing and Profiles in Injustice: Why Racial Profiling Cannot Work and Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).

This article first appeared on the author’s blog. Read more here.