One Man’s 22-Year Search for Justice

Calvin Buari, convicted of a double murder he didn’t commit, was a casualty of over-zealous prosecutors in New York’s tough-on-crime era of the 1990s. In a conversation with The Crime Report about his new podcast, “Empire on Blood,” investigative journalist Steve Fishman tells the story of the battle to clear his name.

Calvin Buari spent 22 years in prison for a double murder he didn’t commit. He was a notorious crack dealer in The Bronx, N.Y., when he was arrested, which made the struggle to prove his innocence─and find allies who could help get his case heard─that much harder.

But when he persuaded veteran journalist Steve Fishman to investigate, his fortunes changed.

Buari was exonerated in May 2017, seven months after his conviction was vacated and he had left prison. The story of Buari’s search for justice is told in a recently released podcast, “Empire on Blood.” The seven-part podcast takes listeners back to the New York of the 1990s, when the city was reeling from a crack epidemic and 2,000 murders a year, and newly elected Mayor Rudy Giuliani came to power promising “tough-on-crime” strategies. But it also offers troubling lessons for today about the collateral damage of those strategies.

In a conversation with TCR Deputy Editor Victoria Mckenzie, Fishman reflects on his seven-year-long investigation, on how he battled his own doubts about the case at the beginning, and on what his podcast reveals about the workings of the criminal justice system.

The Crime Report: Why were you obsessed with this case?

steve fishman

Steve Fishman in the studio (courtesy Panoply Media)

Steve Fishman: I resisted the obsession for a long time, but I guess the origin story, because I’ve thought about this a bunch, is the first call with Cal. He had been put in touch with me by a guy I knew, Emel McDowell, who in fact had won his innocence after being convicted of a murder at the age of 17. Emel says to me ‘I think Cal is innocent,’ so Cal picks up the phone and cold-calls me. And there he is at the other end of the line. Having had some experience with prisons, I can picture Cal on the payphone, standing with these inmates behind him waiting on line for their 15 minutes. And he’s kind of racing through the details of his case and all of this evidence, and it’s a blur—even if I really wanted to I couldn’t have deciphered it.

Maybe it was one of those moments where I was particularly open or vulnerable. I mean, his voice was filled with despair despite the fact that Cal, as I later came to know him, really learned patience and emotional control in prison. I’m imagining this guy with the whole system stacked against him running this campaign for freedom from this prison payphone. It was one of those moments where I was able to imagine, to whatever extent I could, that it must be excruciating to face those kinds of odds.

[I said] “OK Cal, send me the transcripts,” and then these 1,100 pages arrived. It turns out that not only is this one prosecution witness, Dwight, Cal’s “great friend,” really organizing the prosecution, but the prosecution is handing out deals. All of the witnesses who are brought in by Dwight have received an order of protection, which means that Cal and his defense attorney cannot know the names of witnesses who are testifying against him until they walk to the stand. So I’m reading this and I’m thinking— this is crazy! This is insane, this is unfair.

And then I read that in chambers, the judge is saying the same thing. It’s the first day of trial, and the prosecutor in chambers says he just got a phone call from a new witness, and it’s like raining witnesses… and the judge says, for all I know there’s a call out to the entire northeast, any drug dealer wanting to testify will have the charges dismissed against them!

And it just became a moment for me where you start to feel like—the system’s not fair.

It became a road that I was willing to walk. And I have to tell you, it wasn’t easy. I mean, Cal’s no angel. I liked him, I think he’s changed— but he was a guy who was boasting that he helped bring crack to The Bronx. He was a very successful drug dealer and he was ruining neighborhoods, and he needed to be off the streets.

TCR: It seems challenging to get the general public to care about the wrongful conviction of an admitted crack dealer

Fishman: It was a real problem for the audience, and it was a problem for editors— it was a problem for the lawyers that Cal reached out to! He got on the phone and told them the evidence, and when they heard he was a drug dealer, they said: “OK, best of luck.” But I came to the belief that the criminal justice world and maybe the world in general is a complicated place, and the podcast really takes that head on, and I’m proud of that.

oscar michelen

Courtesy Panoply Media

Calvin Buari and his attorney, Oscar Michelen (courtesy Panoply Media)

I think we say, yeah he’s no angel, but what does that mean? What right does that give you as the criminal justice system [to] say, “Well, he didn’t do this crime but he did another— so let the wardens sort them out?” I think that’s a pretty live question for the criminal justice system. People are flawed. Does the past always determine the future? If you believe in rehabilitation and psychotherapy, then no.

TCR: The story also epitomizes a key moment in New York City history, the Giuliani era. Where was your crime reporting at the time? How was this different from the other wrongful convictions?

Fishman: I had reported the wrongful conviction of a guy named David Wong, who was actually in prison for a robbery that he did commit, and then was accused and convicted of a prison yard murder he did not commit. Again, it’s a guy who’s not exactly the high school honor student that you want to root for. The difference for me is that I came in after he had been exonerated and I was telling that story retrospectively. So I was involved in it as a piece of drama that I had all the pieces for.

Cal’s case was very different, because in many ways I was really a catalyst. As a journalist you’re kind of supposed to be a step back, and you’re supposed to be objective. And I certainly was a journalist, as I had to remind Cal at several points. But I was also involved in the story, and I’m going to contend that’s where some of the richness of the narrative comes from.

I started a long time ago in an eastern Connecticut newspaper called the Norwich Bulletin, and the first big story that I ever did was about a rapist-murderer. Part of my portfolio has always been writing about crime, and that’s the reason I would get these envelopes from time to time.

TCR: Who was responsible for Cal finally getting the charges dismissed?

Fishman: Maybe the podcast put a little weight on that side of the scale, because the DA knew it was coming out in a few days and maybe it was a good idea to get ahead of the story. But it was really that Cal was incredibly, incredibly persistent and disciplined. Cal’s a smart and really gifted entrepreneur. One of the things he did on the street that he could not help but be proud of— even when he’s saying “oh, I didn’t realize all the bad I did” — when you get him talking about the crack trade, he says “I was always ahead of the game, I had these marketing gimmicks, I would do sales, two-for-ones,” and there’s a certain kind of pride in his voice. But it is true that he became this quite intuitively gifted businessman.

calvin buari

Calvin Buari (courtesy Panoply Media)

He goes into prison at the age of 24, and spends the next 22 years there. So he really spends his adulthood in prison. And he still has this entrepreneurial gift. He’s writing business plans. He starts a fashion business in prison. And at the same time, he’s maturing. He was all about self-gratification when he was on the streets, and he learns delayed gratification, and patience, and he learns discipline— to the point where he stops even leaving his cell. He just takes his meals in his cell, and reads his books and works on his case, with a level of single-minded devotion that is way beyond my capabilities.

And then, by the way, when he comes out— he’s been out seven months or so, because his case was vacated before the charges were dismissed—he started a business.

TCR: What was your role in the reinvestigation?

Fishman: I will admit that there were a lot of moments when I wavered because Cal’s story was not something that I always believed, not in all of its details. He was a drug dealer in an extremely violent time and he operated on a corner that was dubbed the Corner on Blood [Although] Cal said he was never violent, I always found that to be a little unsettling.

The private eye on the case was a guy who actually had been the private eye on the David Wong case. You meet him in episode 5. He’s a really weird, interesting guy, I mean very colorful. He was on this case and he knew that I was interested in Cal’s case, and he said, “Do you want to take a train ride? There were these new witnesses, and he didn’t know what they were going to say. We’re at a kind of restaurant at a Holiday Inn [in North Carolina], where we meet two sisters. One of the sisters had flashbacks of the scene right in front of me, because she had been 25 feet away [from the murders]. It solidified for me Cal’s innocence. And it certainly helped Cal’s case.

myron beldock

Myron Beldock (courtesy Panoply Media)

So Cal gets the affidavit from her and he manages to get hooked up with Myron Beldock, the legendary attorney who got Hurricane Carter out of prison. Beldock, then 85 years old, comes off his deathbed to basically take up Cal as his last case—and then he dies. And that’s another moment that really pushes me ahead on this path. Cal is a guy who can do 100 pushups without a stop—he’s a tough dude—and he hears that Beldock has died, and he’s in tears. It was just a very emotional moment. It was emotional for him, it was emotional for me. It was one of those moments where I could actually imagine what it might be like to suddenly have this… not just a setback, it’s like your life feels it’s on a course toward freedom, and then the tunnel you’re going through collapses on you.

Cal needed an attorney afterwards. He can’t make phone calls from prison except to people whose numbers are approved. so he would call me and I would conference in people, and I ended up conferencing in Emel McDowell, the guy who initially introduced me to Cal.

Emel had written the appeal that had gotten him out of prison, and then went to work for a law firm. [Emel offered his attorney] and he finally wins Cal’s case. I was a little bit of a provocateur, a little bit of a catalyst, and a little bit of a witness.

TCR: What was your role with the new witnesses?

Fishman: It’s a good question because I was there as a journalist, and I was introduced as a journalist. Journalists don’t usually get to ride along with investigators interviewing witnesses for the first time. I was also there as somebody who had been involved in the case for a long time. I would say that I was not there as an advocate, but I was certainly there as a participant. I did not see my role as urging them to come forward, but I grilled her on her story. It was a journalistic interview, but maybe there’s not too much difference between that and another kind of interview. I wanted to know how close she was, and I wanted to know what she saw, and who she saw, and how could she be sure?

Her story was very, very credible, and frankly I was kind of pleased by that, just from the point of view of having some assuredness about the story that I’d been on by that time for three or four years. it reassured me as a journalist, and because I always occupied a kind of strange space; it buoyed me as somebody who had been involved with Cal for a long time, because I knew, I knew as she said that. I knew that this really could change Cal’s life. It took another two years to get there.

TCR: One of the most striking moments for me is learning what happens to the witness who comes forward after 20 years to testify, how this innocent bystander gets punished by a pretty blunt-edged justice system.   

Fishman: This goes I think to a larger question about how justice works. As you’ve pointed out it was the Giuliani era, the 1990s, there were 2000 murders a year. These guys— the prosecutor, the detective— felt they were the good guys. And they were the good guys. Somebody had to clean up the streets. And it wasn’t always pleasant work to do.

I don’t think that these guys are corrupt. I think that in the context of the times, they felt they had a mandate to act, in a sense, by any means necessary. And if he didn’t do this crime, well he did another crime. and you know what? With Cal, it was true. He didn’t do the murder, he did the drug [crime]. They were going to do whatever it took to make sure that someone like Calvin Buari was not on the streets. But the system can’t work that way.

TCR: Earlier this year, in a conversation about conviction reviews, Brooklyn DA Eric Gonzalez, commenting on the flood of murder cases of the 1980s and 1990s, said many of them were not very well investigated. The attitude was “We’ll just let the jury decide.”

Fishman: That could well be true. He probably mentioned, or maybe he didn’t, if you went before a jury in The Bronx in the 1990s, you didn’t have much of a chance. The DA had a huge advantage, and that advantage was that people were on the side of the DA. It was not a Black Lives Matter moment; it was a moment where Giuliani rolled tanks into the streets. People forget, the city was under siege. I don’t think [prosecutors] felt they had as high a burden of proof as they must feel now.

TCR: There were times during the podcast that you said either prosecutors or detectives intentionally neglected to investigate.

Fishman: I do think that there were times that… I want to choose my words very carefully here. I guess I can’t really use the word conspiracy, but listen— the main witness against Cal absolutely and definitively lied on the stand. And he lied on the stand in two regards: one is that he denied being involved in an attempt to murder Cal, and two, he lied in saying that Cal did it.

Dwight, the main witness, admitted to me that he lied about both of those things. And I really grilled him on the first one. Dwight had actually tried to murder Cal. And the fact that the chief witness against Cal had previously tried to murder him— that really seems like it would be an important fact for the jury to consider. Dwight was asked on the stand, did you have anything to do with the attempted murder of Cal, and he says no. But subsequently Dwight narrated for me how he tried to kill Cal– and so did the chief investigator for The Bronx DA! I asked Dwight, if he was surprised they let him get away with it, and he said no— that’s how the game is played. If you play by the rules, you’re always going to lose.

For me that was actually the most chilling moment in the whole walk through the criminal justice system. Because here you had the insider, the guy who really organized the prosecution, who was the chief witness. And basically he was not only saying that he lied, but he was basically saying that the system worked by allowing witnesses to lie. And I think one of the things the podcast does is really let you know how the system works.

Victoria Mckenzie is Deputy Editor (Content) for The Crime Report. She welcomes comments from readers.


Why Jail is No Place for the Mentally Troubled

For lack of alternatives, thousands of mentally ill individuals are trapped in the justice system. In a conversation with TCR, Alisa Roth, author of “Insane: America’s Criminal Treatment of Mental Illness,” says change will only happen when we reexamine our attitudes towards mental illness.

In her career as a journalist, Alisa Roth has written about people in what she calls “forgotten communities,” such as immigrants and the poor. But when she began focusing on the mentally ill trapped in the U.S. justice system, after a friend’s brother was locked up, Roth discovered what she came to realize was the most forgotten community of all.

“I can’t think of a group that’s more reviled and more misunderstood,” she told TCR. In a discussion with staff writer Isidoro Rodriguez about her new book, “Insane: America’s Criminal Treatment of Mental Illness,” Roth, a former Soros Justice Fellow, describes how jails and prisons have become the nation’s principal institutions for treating mentally troubled individuals, and suggests that strategies for developing more humane, treatment-oriented alternatives have to begin at the state and local levels.

The Crime Report: What was the catalyst for writing this book?


Courtesy Basic Books

Alisa Roth: I can’t think of a group that’s more reviled and more misunderstood than people with mental illness who are in the criminal justice system. We talk about the issue of race in the criminal justice system, we talk about the issue of poverty in the criminal justice system, but we don’t talk about mental illness. These three intersect and overlap, but we can’t think about global reform without addressing the mental health question.

As I mention in the book, I have a friend whose brother developed a severe mental illness and committed a horrible crime. As I was thinking about this whole system, it kept coming back to him. If we as a society can allow him to see an alternative outcome, and not spend the rest of his life in prison, we can allow that for other people who have done less morally or criminally complicated things.

TCR: Through the process of this book, what hurdles did you have to overcome?

AR: I chose two of the most closed systems to look into. The criminal justice system is extremely closed in terms of access, in terms of data, and in terms of information. Likewise, the mental health care system is bureaucratic and complicated. So just figuring out where treatment is being provided, and who should be providing that treatment is difficult.

Then there’s the whole health care aspect. People are not allowed to, or are unwilling to, share information about treatment. And there’s the stigma question in both systems. There is still shame attached to having a mental illness or having a family member with mental illness. We march for breast cancer or AIDS, but we don’t want to talk about mental illness and we don’t want to admit it. So, getting people to open up and say “yes, I do have this issue” or “yes, my child does have this issue and these are the struggles we are going through,” is very difficult. I am very grateful to all the people who were willing to share their stories with me.

TCR: How did dealing with this affect you, and how do you move forward after seeing what you have seen?

AR: I feel a great responsibility and duty to share these stories and spread them. I have the means to tell the world about these horrible situations, whether it’s the really awful abuses or just the day-to-day low-level abuses of being locked up with a mental illness. So, I feel privileged to share that.

Keeping that in mind was a way to mitigate the awfulness of it, but it’s traumatic reporting. I had a lot of nightmares about jail and prisons. I have a lot of friends who work in this universe, so it was great to be able to compare notes and talk about what we have seen. It is traumatizing and exhausting, but I kept thinking that I got to walk out of there at the end of the day, and I needed to take advantage of that to tell the world about how bad the problem is.

TCR: One of the subjects in your book is the practice of solitary, and you note that it is still in effect despite being considered a form of torture by the United Nations. Why do you think it is still being practiced in the U.S.?

AR: There are a lot of pieces that go into this answer. Unfortunately, we have abandoned the notion of reform and rehabilitation in our criminal justice system. We’ve moved back to the punitive notion. In some measure we think that people who are locked up in jail or prison deserve what they get. There is a dehumanizing aspect to the whole criminal justice system, and solitary confinement is part of that. If we don’t think of somebody as a full human being, then it becomes easier to do something really awful to them. If you think of this person as your brother, or our uncle, or your husband, it’s much harder to lock them in a box 23/7.

There’s also the fact that so many of us don’t know what goes on in the criminal justice system. The system as a whole is so abstract for such a large portion of our population, that we just don’t think or know about it. People have no idea that there are tens of thousands of people locked in solitary confinement on any given day. In a lot of places and for a very long time it’s just been how it’s done. It’s a very easy solution to put someone who is being unruly or difficult out of sight and out of mind. I think it speaks to a larger issue: We take people with mental illness, we lock them away, someplace we don’t need to see them. If we put them in jail or prison we don’t need to see them or step over them on our way to Starbucks in the morning. Solitary confinement is a reflection of that. But it makes everything so much worse.

Alisa Roth

Alisa Roth. Photo by Matthew Spence

TCR: Your book also criticizes the dangerous mistakes made by judges, and attorneys, who have no experience with the mentally ill. One example is your story of Jamie Wallace, a young boy suffering from mental illness and multiple physical disabilities, who eventually killed himself in prison due, in part, to a judge’s inability to understand his circumstances. How do we increase awareness and understanding of mental illness so that we may better avoid tragedies such as this?

AR: As awareness of the problem of large numbers of the mentally ill in the criminal justice system grows, judges and attorneys are more attuned to it. It’s not that people don’t know it’s there, but it’s as much as about changing attitudes as anything else. I talk to a lot of judges and I’ve said “Hey, in a lot of cases you’re being asked to make what’s effectively a medical decision and you’re not a doctor; you’re a judge. ‘

The best answer I heard, and it makes sense to me to a degree, is the judge who that’s what he does all the time. He takes the best information he can get and makes a decision based on that. So, he’s not making a medical judgement, per se; he’s taking the information that the psychiatrist, the therapist, and the attorneys give him and using that to make a decision. Jamie Wallace’s case was particularly egregious. He was so young, so sick, and had a developmental disability on top of it. I found it heartbreaking to think that the judge couldn’t see a way to understand. And the judge was playing very much by the rules.

Jamie Wallace was failed by the system at every level, over and over again. A forensic psychiatrist who read about him said he should never have been declared competent or even been standing in that courtroom. The judge made an awful decision, but he also made a mistake in letting him even be in that courtroom that day. You have to wonder how it would have been different if he had been wealthier, or his parents had been more educated, or if he had been in a different state.

TCR: Jamie Wallace’s story is an example of the mistakes that can be made as a result of the disorganized bureaucracy of the criminal justice system. At a time when so many are pushing for better training within that system to fix the problem, and others are fighting to keep the mentally ill out of that system entirely, which do you feel is the better option?

AR: In an ideal world, we would be able to keep everybody with a serious mental illness out of the criminal justice system. In an ideal world, we’d be able to keep a lot of people without a mental illness out of the criminal justice system. We lock up a lot of people very easily. I think that diversion is absolutely critical, but in order to make wide scale diversion possible, we can’t just look at this little tiny piece of the problem. We have to remember that we are operating in a very large ecosystem, not just of criminal justice but also of mental healthcare. We need to see wide-scale reform of both these systems so that people aren’t getting to the point where they’re so sick.

You see people in jail and prison who are sicker than a lot of people you see in psychiatric hospitals. We need to be catching the diseases earlier and treating them earlier. It’s great to train the cops to not arrest people, but if you don’t have some place for the cops to take them that’s not jail, they’re still going to wind up in jail. That’s what happened in San Antonio when they created their crisis center system. [They realized] you can train cops as much as you want, but they’re still going to take people to jail if there’s no other option. The other part of it is, as long as we are going to have people that end up in the criminal justice system, we have to make sure that when they’re there, they’re getting the treatment that they need and not just being warehoused in prisons.

TCR:A popular talking point now is de-institutionalization, starting when the majority of state-run mental health hospitals were closed during the 1960s. However, your book insists that there were other, more important, causes for the problem. Can you expand on that?

AR: De-institutionalization is a fabulous talking point. It has this very neat narrative: Dorothy Dix found people locked up in jail; realized this was not the place for them; they weren’t getting the treatment they needed; wardens were saying they couldn’t handle this; she pushed for the creation of the asylum system; everything was great until it all went to hell and we had to open up the doors and let everyone out. Then, without treatment, people were ending up in the criminal justice system. And it has a very neat solution: if this is how we got there, then all we have to do is treat the mental illness and we’ll get people out of the criminal justice system.

Unfortunately, it’s way more complicated than that. Even when you look at the heyday of institutionalization, during the middle of the last century, there were a lot of people in institutions, but it was not the majority. There were still a lot of people living at home or elsewhere, or getting treatment in the community. The population in institutions tended to be older, white, female, and very heavy on people with a diagnosis of schizophrenia. The people now locked in the criminal justice system are overwhelmingly young, male, and not white.

I think we also have to look at the story of mass incarceration. We’ve started locking up way more people than we ever did…and when you cast such a big net, of course you’re going to pull in a lot of people with mental illness. When you break it down even further and look at co-occurring substance use disorders, a very large majority of people with mental illness in the criminal justice system have a co-occurring substance use disorder. So, if we’re arresting tons of people for drug possession, drug use, drug selling, drug dealing, it makes perfect sense that we’ll pick up people with mental illness.

Using policing tactics such as “broken windows” and “stop and frisk,” allowed us to lock up huge amounts of people [and] made it easier to arrest people with mental illness. I think that the story of mental illness in the criminal justice system is as much a story of mass incarceration as it is of de-institutionalization. The one piece of the story that is important, even if we don’t quite tell it right, is that we do have a severe lack of mental health care in the community and we have made it extremely difficult to get treatment for mental illness. But it’s not that everybody was getting treatment in a hospital and now they can’t get it, we just don’t have that and we’ve never had it.

TCR: How can we get people to start viewing mental illness seriously?

AR: I think we’re starting to move in that direction, very slowly. We’re seeing more people acknowledging an issue with depression or anxiety. We’re still not seeing a lot of actors come up at the Oscars and mention that they have schizophrenia, but I think it’s becoming more socially acceptable to talk about these things. We know that people can change, and society can change. There was a time that people didn’t talk about HIV or cancer, and now we wave flags for it. We need to get over the fear and stigma [attached to] mental illness in our society. The narrative in the media and in politics that links mental illness and violence is very damaging. And it’s hard to get over that stigma when every time something bad happens somebody is out there pointing a finger at mental illness.

TCR: Are tools such as Crisis Intervention Teams (CIT), deescalation and community policing having a positive effect on the problem?

AR: Like so many things in criminal justice, there is not a ton of data or evidence-based research to show one way or another. The data in places such as Miami or San Antonio show that these things work. Miami says that it’s cut the number of officer-involved shootings. In San Antonio, the system has prevented them from expanding the jail. People who study policing say that CIT is just good policing—-going back to the kind of policing we had before “professionalized” law enforcement. It was the cop walking the beat who knew the people in the community. There’s no reason to run into every situation like it’s a battleground. Police officers always talk about how they see people on the worst day of their lives. That narrative is used sometimes as a reason why you need to be on your guard. But I’ve also heard it used as a reason to be gentle, kind, and thoughtful because they’re there to help.

Getting police to respond in a more thoughtful, more community/medically oriented way, instead of the tough, warrior way, is terrific. The big caveat is that if you don’t have the whole system set up to accommodate this it can only get you so far. You might deescalate a particular situation, but if you don’t have any longer-term solutions, you’re going to be back picking up the same person with no place to go. Often communities think CIT will be a step to solving the problem, but you have to think about how you’re going to divert, what’s the mental health treatment going to be, and how do we make sure we’re not picking people up again next week or next month.

TCR: Does change need to start at a federal level?  And do you see potential for change under the current administration?

AR: The thing about criminal justice is that so much of it happens on such a local level that, on the flip side, a lot of reform can also happen on a local level. If I’m in Manhattan, and get arrested, it could potentially be a different outcome then if I’m in the Bronx or New Jersey. Because it’s so local, I think the federal question is almost irrelevant. Even the laws of involuntary commitment are handled at a local level.  I think with a lot of laws, particularly with HIPAA (the Health Insurance Portability and Accountability Act) and involuntary commitment, it really comes down to a very narrow line of navigating between civil liberties and safety for the person and the public.

We obviously don’t want to go back to the time when somebody could have a child committed to a hospital for not being religious enough or dating the wrong person.  On the other hand, I think we’ve made it so difficult to get somebody hospitalized that we’re in this perpetual crisis management mode.  The way it’s set up now is that you really have to be at a crisis point in order to make involuntary commitment possible.  Likewise, with HIPAA, I don’t want my business broadcast all over the place.  On the other hand, the very nature of mental illness means that the person is not, necessarily, capable of making decisions for himself, or even providing the information that the doctors need.  I’ve heard families talk about managing to get their adult child hospitalized, but then not being able to convince the doctor to talk to them about what has or hasn’t worked in the past.  As with any other illness, the more information the clinician has, the better they can treat the problem.

Isidoro Rodririguez

HIPAA is also widely misunderstood. It’s used as an excuse for stonewalling families and other people trying to get information.  I think the more important question, is how do we figure out how to loosen these laws a little bit to make things easier and more effective without throwing all the civil liberties out with it.  As for the current administration, I think this is a big wildcard.  It doesn’t seem to be a big priority except on those occasions when something awful happens and suddenly there’s talk of bringing back asylums and more mental health care.  Between seeing real change at a local level or at a federal level, I have a little bit of hope that at the local level there is potential for reform.

Isidoro Rodriguez, a staff writer for The Crime Report, covers policing and mental health issues. He welcomes comments from readers.


How State Laws Criminalize HIV Sufferers

Some 28 states require individuals to disclose HIV status to their sexual partners or face criminal penalties. Author Trevor Hoppe tells TCR that such laws are largely the result of fear and discrimination towards victims of diseases considered socially unacceptable–a punitive approach that he says continues today in the face of public health crises such as the opioid epidemic.

Commentators often contrast today’s treatment of the opioid crisis as a public health epidemic with the punitive approach once taken toward crack cocaine addiction. But perhaps an equally stark example of how Americans have criminalized certain socially “disreputable” diseases is the justice system’s approach to the HIV-AIDS epidemic that swept through US gay communities in the 1980s.

The harmful after-effects of that approach linger today. Some 28 states have criminal statutes that require people living with HIV to disclose their HIV status to sexual partners before having sex. Trevor Hoppe, an assistant professor of sociology at the State University of New York-Albany, closely examines those statutes and the struggle to rescind them in his recent book, “Punishing Disease: HIV and the Criminalization of Sickness.”

In a discussion with TCR, Hoppe explores the origins of the HIV-specific criminal laws in the US, how local health officials became the chief enforcers of them, and why the approach to the AIDS epidemic offers a cautionary lesson for contemporary public health officials and legislators.

(The conversation has been slightly abridged and edited.)

The Crime Report: You write that HIV exposure-and-disclosure statutes in the states were largely driven by local police departments and prosecutors.

Trevor Hoppe: Legal scholars have been saying for over a decade that these laws were a result of the Ryan White Care Act or the President’s Commission on the HIV Epidemic released under President Reagan. Both of those documents did end up advancing criminal statutes targeting HIV, but as I show in the book many of these laws or bills were introduced well before those documents came into existence.

The book is really trying to show how gay men were seen by police as a threat, especially sex workers living with HIV, but also to a lesser extent gay men living with HIV who were being arrested for other crimes. Police officers wanted a tool to punish these individuals more harshly.

TCR:  What was behind the belief that HIV was being spread by sex workers?

HOPPE:   Studies that I cite in the book suggested that sex workers in African countries had high rates of HIV, but it became clear very early on in the epidemic that was not happening in the United States, and that sex workers in the US had much lower rates of HIV than [those in Africa].  For many years, it was prohibited for any group to do research that might be perceived as promoting homosexuality or sex work. Those things are definitely intimately linked, and have been a problem for AIDS researchers, and HIV-prevention practitioners.

TCR:  In the states that have criminal statutes pertaining to HIV, is it potentially a crime to have consensual sex after disclosing your HIV status?

HOPPE: In the vast majority of states, no. The crime is the failure to disclose the status in almost all states. There are states like Louisiana and Tennessee that have more broadly written statutes that could be construed to include cases where someone did disclose, but to my knowledge they’ve not been used in that way. That isn’t to say that there aren’t cases where the person living with HIV says “I told them,” and then the person they had sex with says, ”No they didn’t.”

TCR: You write about the ways in which local health officials in Michigan used the threat of criminal action to coerce people into specific behaviors, and how they even take on an active law enforcement role. For instance, a Macomb County Health Department form requires a client to acknowledge having been informed of a positive HIV status, and that the client is aware of Michigan’s felony laws pertaining to disclosure. On the same form, clients are informed that condoms “must” be used, making it appear they are liable to prosecution for having unprotected sex of any kind, regardless of the consent, knowledge and HIV status of their partner.

HOPPE: Right, and there are health departments around the country using similar forms, so Michigan is not alone in that respect. There’s a conflation of consensual sex with criminality, and I think that’s part of public health trying to flex muscles and coerce people. But I think it does a disservice to the community, in that it really erodes trust between public health and the communities that it works with.

TCR:  Besides being an early adopter of HIV disclosure laws that pertained to a wide range of sexual activities, Michigan also began using a names-based reporting system to track people who tested positive for HIV. You write that health officials also began using this list as an investigative tool to look for people who might be breaking the law, and passing these names on to investigators, which have resulted in prosecutions.

HOPPE: I think the state would say “no, we have firm policies in place,” but when I spoke to people on the ground, they made it clear that there’s a lot of leeway in how they interpret and apply those policies. So you have local health officials who were using partner services to try to track down people they suspect might have been breaking the law, and that is explicitly not something that the state health department of Michigan condones. Nonetheless, technologies are being used to that end. I think it’s just one of those things that the state health department would rather not talk about, but it’s definitely happened at the local levels.

TCR:  You conducted these interviews with local health officials from 17 jurisdictions in Michigan several years ago. Was there ever any response from the state?

HOPPE: There was a series of articles about the names-based reporting, and the way it was being used, [by] an investigative journalist named Todd Heywood. The result was that the state health department said to local health departments, “You don’t have to use these [client acknowledgement] forms.” To my knowledge that was the only result, and I don’t know that local health departments are doing anything different. But the state health department certainly did not publicly say that they had to start doing anything differently. So it’s a good question and I think one still worth asking local health departments. They certainly are not excited to talk to me about it anymore.

TCR:  Based on some of the interviews with health officials you included in the book, it seems they were pretty candid with you at first.

HOPPE: They were extremely candid, and I’m grateful for that, because they in many cases told me quite matter-of-factly about what they did. And that was one of the surprising things from my end in doing the study⸺how nonchalant they were about some of the practices they were engaged in.

They would never outright disclose someone’s status. They would dance around that [by asking] “Did anyone you had sex with tell you they were HIV positive?” And [the client] would say “no, nobody told me.” Then they would say, “are you sure?”  And they would bring you back in for more questioning. They would try to prod you into realizing something was amiss. So they were really cognizant of HIPPA, health privacy laws, and very careful not to break them.

TCR:  How did they use contact tracing to try and search for people who might be breaking the law?

HOPPE: The way that contact tracing works is that if I test positive for gonorrhea, chlamydia or HIV, they would ask me who my sexual partners were. I would tell them “Joe, Bob, and Larry.” And then they would go contact Joe, Bob and Larry and say “Someone you have had sex with has tested positive for gonorrhea, chlamydia or HIV; you need to get tested.”

Trevor Hoppe

Trevor Hoppe

But they would also ask: ‘Did Joe, Bob or Larry tell you that they were HIV positive?’

And I would say “No.” Then they would look at the names-based database to see whether Joe, Bob or Larry actually have HIV. They would use those names and report it to investigators if they suspected one of them of violating the law.

TCR:  You write that HIV statutes were part of a negotiation to get sodomy laws off the books.

HOPPE: In states like Nevada, it was a tit-for-tat agreement between Democrats and Republicans. Democrats wanted to repeal the sodomy laws; Republicans had a lot of anxiety over what legalizing homosexuality would mean for the epidemic, because they viewed it as dangerous and as they said a “cesspool of disease.” [After the sodomy law was repealed] conservatives introduced legislation immediately to criminalize HIV-nondisclosure…literally, the next day.

TCR:  Is there any mens rea requirement to the exposure-and-nondisclosure laws? 

HOPPE: There’s no requirement with intent whatsoever, it’s just presumed. Drunk driving is often framed in similar legal terms— you don’t have to show intent to show that you were violating the law.  HIV is treated in similar ways, with intent being explicitly not part of the requirement or element under the law.

TCR:  After looking so closely at how the government, the media, and the public reacted to HIV, do you see any parallels to the “epidemics” of today, such as opioids, sex trafficking, and school shootings?

HOPPE: Well, I think we are prone to panic when it comes to our policy, so HIV is not unique in that sense. School shootings are a good example. If you wanted to understand gun violence in America, school shootings would not be the place to start, because they are such a tiny fraction of that issue. But they nonetheless dominate our consciousness.

Similarly, we became stuck on these highly sensational— and maybe rightly so, emotional— aspects of certain issues that [prevent us] from stepping back and seeing the bigger picture. Homosexuality definitely did that for HIV, and while I think the school shootings that are happening are horrible and we ought to prevent them as best we can, it’s just the tip of the iceberg when it comes to gun violence.

TCR:  What were the unintended results of HIV statutes, and what does this have to teach us about criminalization in the opioid context?

HOPPE: I think lawmakers had the idea that they were going to try to punish people who were out there trying to infect other people. Which seems like a good idea, right? That’s not something that we want people to be doing. But the language that they drafted in these statutes is so broad, that it encompasses behaviors that are far less nefarious, and far less harmful than what they had in mind.

It’s not just people out there trying to intentionally infect other people who are being prosecuted— it’s people who had a one-time sexual encounter with a condom, or who have an undetectable viral load, or who even (in Michigan) gave a lap dance. These are hardly the kinds of people I think those lawmakers had in mind.

Lawmakers, prosecutors, judges have no medical training. Nor are they medical experts. There are some exceptions, but [lawmakers] ought to take special caution when they try to create a law pertaining to a medical issue. The science around those issues changes quickly, and the law is unlikely to keep up with developments in the medical world. If you get it wrong, the consequences are unpredictable and, in the case of HIV criminalization, they have been devastating to many people.

TCR:  You examined 74 criminal cases in Michigan and Tennessee, looking at thousands of pages of court documents. What were you looking for?

HOPPE: I was interested in how prosecutors and judges make sense of these cases. How do they describe HIV? How do they describe the defendants? I was looking for the language that they used to represent HIV in the courtroom, and to represent the defendant’s behaviors, and what I found was that they consistently compared HIV to a death sentence, defendants to murderers, and their sexual activity as potential homicide. So they used these analogies to violent crime to kind of make sense of the punishments that they meted out.

I make the argument that the language matters. The language that they use to describe HIV is not inconsequential. It sort of justifies the punishment that they dole out.

TCR:  We now have plenty of research showing the extremely low risk of transmission when someone has an undetectable viral load. But these laws persist, under the same premise that people living with HIV represent a health threat. Where has science won in the courts? Some states have managed to repeal these laws.

HOPPE: Yes, but not through litigation. They’ve been repealed through legislation. California and Colorado have repealed their felony laws, and that surprised me, to be perfectly honest, in both cases. Because lawmakers really are not keen to repeal criminal statutes. I think states that have less left-leaning legislatures will have a harder time getting to repeal.

States like Tennessee and Iowa are instead moving to expand their laws to include other diseases. So I do think we’re at kind of a precipitous moment or a crossroads, where we could go one of two directions. And I don’t have a crystal ball.  I’m hopeful that more states will repeal.

TCR: In places where laws weren’t repealed, were there any amendments or provisions added to HIV statutes due to scientific advances?

HOPPE: Since it is no longer a death sentence, people living with HIV can’t automatically be characterized as “homicidal” for having sex; and we know more about how the disease is transferred.

There have been amendments, but mostly they’re technical in nature and not substantive. Carol Galletly and Zita Lazzarini at the University of Connecticut have done a study looking at those amendments. But my understanding is that they’re not radical overhauls, they’re just sort of housecleaning in most cases.

TCR:  Did the courts ever consider mitigating circumstances? For example, if someone had an undetectable viral load and used a condom?

HOPPE: They were raised as an issue by the defense several times. Mostly at sentencing, because most of these cases involved a plea. But I can think of at least one trial where a defendant tried to use his undetectable viral load as a defense, and it fell flat— it was entirely unsuccessful, to the court.

There is a possibility that could change, but those people don’t know what “undetectable” means. So I think until you have a judge, a prosecutor, etc, who has some basic understanding of HIV you’re going to still end up with the same outcomes. Part of the problem is that it’s not big cities that are leading the charge on this; it’s small towns.

TCR:  Tell me more about small towns and rural counties

HOPPE: To me, the criminalization of HIV is a problem of stigma. Where there is stigma you’ll find criminalization. So I went into this study, for example, expecting that gay men would be disproportionately targeted under these laws because of the homophobia that drove their implementation.

But what the book finds is that it’s mostly heterosexuals– particularly white heterosexuals, but also black heterosexual men, who are being disproportionately impacted. And what that tells me is that the people with the lowest probability of contracting HIV have the highest probability of being prosecuted. So we’re working on an analysis that’s looking geographically to get to some finer points on this question.

But what I can say right now is that prevalence of HIV does not predict prevalence of HIV criminalization. Counties where there’s lots of HIV don’t necessarily have lots of HIV criminal cases.

TCR:  How strong is the force of inertia in the court system, once scientifically invalid ideas are stamped into law?

HOPPE: It’s self-reproducing! Case law is really entrenched. It is very hard to grossly deviate from the course the courts are already on.

I think a powerful test case can certainly make a difference. But finding that test case that’s right, and getting it through the court, and finding a defendant who’s willing to go through that process seems quite difficult. Nick Rhoades in Iowa was an example of one of these test cases that I think made a huge difference, because he was sentenced to 25 years in prison for having sex with someone once and using a condom.

That’s indefensible, I think. And he’s also a very handsome white gay man, so he’s a sympathetic sort of defendant. So I do think that cases like that can have an effect, but they’re just so few and far between. It’s not a federal system, so it really takes one of these cases in every single state.

TCR:  So to your knowledge the issue of viral count hasn’t really made it into the statutes?

Victoria Mckenzie

Victoria Mckenzie

HOPPE: When Iowa revised its law a couple of years ago, they did reduce the penalties in cases where someone has undetectable viral loads, but they did not eliminate it. North Carolina’s [statute] was revised to say that if you had an undetectable viral load, you did not have to disclose. It was a law that to my knowledge was almost never used– but nonetheless it’s a sign that there could be some movement happening.

TCR:  Do you see states still moving toward repealing these criminal laws under the Trump administration?

HOPPE: I talk to people in states around the country, and many people on the ground are dedicated to making that happen, and hopeful that it will happen. And so, I’m hopeful for them.

Victoria Mckenzie is Deputy Editor (Content) of The Crime Report. She welcomes readers’ comments.


Sex, Murder and Madness: Lessons From a Gilded Age Trial

The murder of notable New York architect Sanford White by a jealous husband in 1906 thrust young actress and model Evelyn Nesbit  into the center of  the first so-called  “trial of the century.” Simon Baatz, author of a new book about the case, explains why it still matters today.

Evelyn Nesbit may have been America’s first celebrity model. In the early years of the 20th century, the 16-year-old was courted by companies hoping to market her beauty and by some of the country’s richest men hoping to win her favors.

But a murder trial turned her into a notorious footnote of U.S. legal history.

On June 25, 1906, her then-husband, railroad heir Harry Kendall Thaw, murdered New York architect Stanford White, in what his lawyers argued was a fit of insanity to avenge White’s alleged rape of Nesbit a few years earlier.  Quickly dubbed by New York media “the trial of the century” (arguably, the first time the phrase was ever used), it has fueled multiple books and even a movie. But the debate over the facts of the case—and Nesbit’s role in the trial⸺continues to this day.

The newest  book in the genre is The Girl on the Velvet Swing: Sex, Murder, and Madness at the Dawn of the Twentieth Century,  In a conversation with The Crime Report, author Simon Baatz, a professor of history at John Jay College, argues that the trial offers some intriguing modern lessons about the role of money in sensational criminal cases, the use of the insanity defense, and the politics of  prosecuting rape.

This is an abridged and slightly edited version of the conversation.

The Crime Report: Unlike many non-fiction books, yours reads like a literary piece of work.  What did you rely on in your research to be able to write so intimately about what the characters were feeling?

Simon Baatz:  Evelyn Nesbit was the main witness in the first trial. There were 14 daily newspapers in New York at the time, and I went through probably about eight of them. It was page after page after page in all of the newspapers, and they printed all of the testimony verbatim. After the trial, her autobiography [Prodigal Days: The Untold Story of Evelyn Nesbit] goes into all the detail again and says what she was thinking and feeling. Nothing is imagined. Evelyn was also paid $30,000 to be a consultant on the 1955 movie [Girl on the Red Velvet Swing]. But as I said right at the end of the book, you never know what the truth is. You never know if that rape ever happened.

TCR: Throughout the trials, Nesbit’s rape is used to justify Thaw’s murder of Stanford White. It’s only in the Afterword that you mention it is impossible to verify the veracity of the rape.

Simon Baatz

Simon Baatz

Baatz: In her autobiography, she does not say the rape didn’t happen, but she presents the whole evening as a much more benign thing, that in fact she was unconscious, but White didn’t deliberately try. She testified under oath at two trials that the rape had happened. But Thaw’s lawyers may have put pressure on her to testify that the rape happened and to lie. She was only 21 when the first trial happened. The lawyers were paid very high fees. They wanted to get [Thaw] off the electric chair—there was a real possibility that he could have ended up on the electric chair. So you have no idea where the truth lies.

TCR: There is a precedent of women having the veracity of their sexual accusations questioned, so why in Evelyn’s case would she be lying about the assault unless her rape was a tool that Harry Thaw was using to justify Stanford White’s murder?

Baatz: But that’s the way he did use it. Everything that comes out of the trial is to appeal to the jury, is to say this was a terrible thing that happened to his wife. She was raped, she was drugged, and therefore the jury would acquit him out of sympathy.   And the thing that I found very curious and interesting was that this defense, although there is no law anywhere that says, yes, a husband can kill a man who assaulted his wife, on many, many occasions, especially in the southern states, a husband would kill the man who was having an affair with his wife over adultery, and the jury would decide a verdict of not guilty, so this defense had been used many times before.

TCR: Like a form of vigilante justice?

Baatz: Yes, exactly, and the jury would disregard the fact that a murder had actually happened and would vote not guilty. So they were hoping to use this defense again in this case.  But I tried to avoid being very explicit on doubting her word. It was very delicate for me. I don’t want to say Evelyn Nesbit is lying. What I said is she may have perjured herself because of the attorneys. All those men may have put pressure on her to do that. You know, she had no education, no profession, nothing on which she could fall back on.

There was no social security, there was nothing that we now take for granted in terms of safety net. She was on her own, so she was in a very powerless position, and those attorneys and her husband could have cut her off without a penny if she hadn’t testified the way they wanted her to testify.

Stanford White

Stanford White via Wikkipedia

TCR: Let’s discuss Stanford White’s role in Evelyn Nesbit’s life when she first moves to New York from Philadelphia.  He finances the family’s lifestyle. How is it that Evelyn’s mother Florence accepts his money without ever questioning his motives?

Baatz: It’s probably difficult for us to put ourselves into the situation that Evelyn’s mother was in. That she also had no way to make a living. There was literally no safety net. Her daughter has found some means of employment, some income as a model, but that’s still kind of precarious because how long is that going to last? And suddenly White comes along, portrays himself as this kind of disinterested guardian and, under the circumstances, who is to judge Florence? Is Florence going to turn down White’s money when he seems to be just treating her like royalty?  That’s part of the explanation.

Everyone said he was a very charming man, a very genial character, and she would have had no reason to believe otherwise. She would have had no evidence about the things that he did or didn’t do.

TCR: After her association with Stanford White, Evelyn ends up marrying Harry Thaw, heir to the Pittsburgh railroad fortune, who has a bit of a sinister reputation even before the murder. What do you make of her relationship with Harry?

Baatz: Why would you marry someone who might have come across at times as mentally unstable? A lot of people would recount that for instance if he was in a restaurant and something happened that displeased him, maybe a waiter didn’t bring his meal quickly, he would often just pull the cloth and all the dishes would fall smash onto the floor. You know, he would just trash a restaurant and then he would just give over however much money needed.

It’s difficult to explain unless you realize that she was someone who had no resources to fall back upon, and here was this seemingly nice man who was willing to have her as a wife, who was offering her security.

But Evelyn stood by her husband. It’s quite amazing that she was willing to go in public and testify on the aspects of her life that really reflected poorly on her. It was humiliating. The only way you can explain it is that she was very, very young.

TCR: There is a recurring theme in the book that Evelyn didn’t have to testify in Harry Thaw’s trials. You write that “the tragedy of Evelyn’s life” was that there had been no necessity for her testify, or to give up her privacy and reputation in the process.

Evelyn Nesbit testifying at trial via Flickr

Baatz: The first trial is in 1907 and she testifies then. She is the principle witness. In the second trial in 1908, she repeats exactly the same story. By then he’s in a mental asylum [where he was confined after a verdict that found him not guilty by reason of insanity], and he wants her to move to the village of Fishkill, NY, to be near him in the asylum. She doesn’t want to do that. She stays in Manhattan and there are reports of her being seen in restaurants with men. He’s sitting in the asylum reading the newspaper accounts and he gradually begins to stir himself up into this frenzy of jealousy and very quickly after he is in the asylum they basically separate and have nothing to do with each other.

And I think that causes her to think: Should I then be testifying on his behalf in the future? What am I getting out of it? And the answer is , I am getting nothing out of it. And then he stops making the payments on the house on Park Avenue. She has to move into a small studio, and eventually she becomes a witness for the state when he’s in the asylum.

He goes through all these appeals afterwards. What I left out of the book is that there are all these other lawsuits. So for example, he would go through all these lawyers and fire them as soon as the case was over and hire a new set of lawyers. But the family was very slow in paying the lawyers. So the lawyers took the family to court for payment, and when those lawsuits were heard, details came out that revealed that the lawyers in previous trials had perjured themselves over bribed witnesses, so the district attorney would then go after those lawyers and prosecute those lawyers.

TCR: The trial raises issues that are relevant today. People with means can hire lawyers who will build a strong defense case for their clients. Someone who can’t afford a lawyer doesn’t have the same advantages. That was one of the questions I had as a reader: was Harry Thaw acting rationally and with intent when he killed Stanford White?

Baatz: On one side you could say, yeah he was acting rationally because here is this man walking around. Suppose Harvey Weinstein got away with no punishment? A lot of people would find that outrageous, and in fact a lot of people have found it outrageous that for many, many years he’s been doing all these things and there’s been absolutely no consequences whatsoever. In fact, the consequences are whether he becomes more and more famous, more and more Oscars. So a lot of people would be very upset and angry about that; but we have some reasonable thought that Weinstein is going to be prosecuted. That people like Kevin Spacey are probably going to be prosecuted, and therefore no one is taking the law into their own hands.

With White, he was not going to be prosecuted, he was walking around, this was five years after the rape had happened. White was  a man about town, and I could understand that Harry Thaw would get upset to see this, and he’s in love with his wife. He treasures his wife. He wants the marriage to work out, and she’s telling him about this dreadful rape that happened, which was that she was drugged, she was lured to the building under false pretenses, she thought there was going to be a party. She was then drugged with the wine, she was unconscious. She wakes up naked next to this man who is three times her age, and there is blood on the sheets.

All the previous authors described this as a seduction but that word never appears in my book. There is nothing about this that is seducing because when you say seduction there is an implication of consensual behavior. If you’re 16, can anything really be consensual?

What really annoyed me no end was all these people calling it a seduction. How did it come about that people are calling this a seduction? And my best answer is that in the 1950s people started to rediscover McKim, Mead, and White, and rediscover Stanford White. By the 1920s all that architecture fell out of fashion, and in 1925 Madison Square Garden, which was a beautiful building, was torn down. Part of the reason why they described this as a seduction was because they are writing these books about Stanford White as the best architect in New York City’s history, and it would be really inconvenient to have him as a pedophile and as a rapist.

A lot of people actually claim that she was the person at fault. That she was responsible for all of this. It’s so false. He is 47, she is 16. She has no knowledge of society. How could she be responsible? It’s just absurd.

TCR:  Evelyn’s story is very much tied to America’s Gilded Age, with wealthy industrialist families such as the Thaws and the Carnegies exerting great influence on American society and culture. Please put that in the context of the transformation New York was undergoing at the time.

Baatz: New York City is changing enormously in these years. From about 1880 onward, huge numbers of immigrants are coming in from Southern Europe and Eastern Europe. I think, though, there is very little contact, almost zero contact, between what’s going on on the Lower East Side with the immigrants coming in, Jewish and Catholic immigrants from Italy and Eastern Europe, there is almost no contact between that world and the world of Stanford White, which is separate uptown.

The only contact probably would have been prostitutes from the immigrant neighborhoods who were coming uptown and working the streets around Madison Square and that part of town. But Stanford White himself probably never went down to the immigrant neighborhoods, and the only time Harry did was when he was in the police station in Mott Street, which is right in the heart of the Italian immigrant neighborhood, and I think the book reflects the reality that there was no contact between these worlds.

The other thing we have difficulty understanding is that people in those days didn’t really travel. They certainly didn’t travel outside New York City because it was too expensive to go anywhere. They certainly didn’t travel to Europe. Only the rich could do that.  I don’t think people even traveled much within New York City. If you were living down on what is now Canal Street, and your work is there, and your apartment is near Canal Street, there is little reason for you to be wanting to go uptown to Madison Square.

TCR: During Thaw’s trials, Anthony Comstock, who founded the New York Society for the Suppression of Vice in 1873, campaigned for decades against obscenity.  And yet, Harry Thaw’s situation and subsequently lurid trials actually generated a lot of sympathy from the public. What was the criminal justice system like in early 20th century New York?

Baatz: The Society for the Suppression of Vice was a private organization and somehow Comstock got enormous influence, perhaps because it was seen as the only effective agency campaigning against pornography, against birth control. Congress can only deal with things that are across state lines. So the only influence they could have was to prevent anything being sent by mail across state lines, and within a state you would have to go to the state legislature to deal with it, so he was very successful in getting Congress to pass this law against transmitting obscene literature across state lines.

There is a wonderful book called Crimes Against Children by Stephen Robertson and there were a whole lot of articles written by historians within the last 15 years, about child abuse in this period, about pornography, about prostitution. In 1895 the New York State legislature passed a series of laws, including one that raised the age of consent from ten to 18. And they also vastly changed the laws on rape.

Before 1895, to prosecute someone on the charge of rape you had to have corroboration that it had occurred, which of course is close to impossible. [You had] to demonstrate that the woman had resisted, that she had fought back, and this would be evidence that this was presumably not consensual.

It’s quite a radical change. After 1895 just to have intercourse with someone younger than 18, by definition was illegal, was rape, and the penalty was a minimum of ten years in the penitentiary, plus a fine. So it’s very significant.

The other thing as you say is that whenever Harry Thaw appeared in public, huge crowds turn out for him, and the popular feeling was that Thaw should be released, he did nothing wrong, so the public attitude towards all of this is incredibly favorable.

TCR: Did Stanford White’s murder and Harry Thaw’s trials affect law enforcement at that time?

Baatz: I can’t say I know a great deal more about this because the other thing is that it’s not easy to find out information. Someone made the point: how much attention were the newspapers paying to a normal rape case when the people were not famous? And the answer is very little. If it appeared in the newspaper at all it would be two or three lines.

What’s different about this case is that it just took up pages and pages because of the celebrity of the people involved. You have Stanford White whom everybody knows, who is responsible for some of the most beautiful buildings in New York; you have this chorus girl and the fact that she is in the theater, anybody involved in the theater was by definition disreputable; and you have very, very wealthy people involved. It all made for a very sensational case.

evelyn nesbitt

Nesbit dodging photographers during trial. photo via Flickr

TCR: What role did newspapers play in the trials?

Baatz:  Evelyn’s testimony was deliberately graphic, because the more graphic she made it, the worse it would portray Stanford White, and therefore the more justification Harry would have for killing him. I think what appeared in the daily newspapers was so unprecedented, for Americans to read about, and very shocking. To us it wouldn’t appear shocking at all.

It was also really the golden age of American newspapers.  Chicago in 1924 had six daily newspapers; New York City had 14 daily newspapers. There was no radio, no television, no internet. So the newspapers had enormous influence in what was reported and what was written about, and everybody bought a newspaper. these newspapers were tremendously influential, tremendously powerful, and very accessible.  They played a role in shaping how people perceive these things.

TCR: If as you say the trials were printed in such a way to justify Thaw’s murder charges, the newspapers at the time didn’t demonstrate any journalistic objectivity. Why were the newspapers taking Thaw’s defense?

Baatz: Partly because Stanford White wasn’t around to defend himself. The other thing is that the Thaw family was very energetic in pushing their case. I didn’t mention it in the book but they financed a play that was playing in a theater in New York City. They financed at least one movie, a silent movie, which was probably one of the first movies ever produced, and they made this huge publicity campaign. I think there were also clues that they were actually paying some journalists to write articles for magazines that would be favorable to the Thaw family, and all of Stanford White’s friends kind of scattered.

TCR: No one came to White’s defense?

Baatz: Very few people came to his defense.  His wife Bessie lived in Long Island, and she was obviously completely humiliated because she’d been living this upper class life as a respectable society lady, and suddenly all this information about her husband’s secret life is coming out, so she’s really not going to be out there defending him.

TCR: In 1913, Harry Thaw manages to successfully escape from the asylum in Fishkill and flees to Canada, where he also experiences public support, but Canadian authorities still want him out of the country. Since he couldn’t be prosecuted for a crime he had committed in New York State, what grounds do they have to force him to return to the US?

Baatz:  Canada had passed immigration legislation only a few years before. Thaw’s lawyers in Canada were going to claim that the legislation, which was going to be used against Harry Thaw was unconstitutional. The Canadian government knew that the Thaw family were willing to spend as much money as it took, and they were afraid that Thaw would then tie up their courts in Canada with appeal after appeal, which is what he’d done in New York. They don’t want that to happen, so they throw him back into the United States and in those days the border was not guarded, you could drive back and forth without it being questioned, so he’s back in New Hampshire, and New York wants to extradite him from New Hampshire.

But you can’t just say to New Hampshire we want so and so; you can only extradite someone on the basis that there is an indictment against that person. So first they have to indict Harry on some charge, and the charge they come up with is escaping from the asylum, conspiracy to escape, and then New Hampshire extradites him back to New York.

TCR: And then in 1915 the Supreme Court of New York takes on Harry Thaw’s case?

Baatz: Yeah, because the authorities in New Hampshire said we can’t really decide this because this seems to be an extradition request on a whim. How can New York State claim that Thaw is conspiring when he was insane? An insane person can’t conspire, an insane person can’t be part of the conspiracy, so they get him back to New York, but they get him back on the basis of an indictment against him for conspiracy.

Well, New York State can’t just drop that indictment and pretend it never existed, and throw him into the asylum. They now have to put him on trial on the basis of the indictment, which was an indictment for conspiracy, so now he goes on trial. The judge allows the jury to hear the case, and the jury, because popular support is so strong, then declares that he is sane and not guilty of the conspiracy, and then he is released. He is a free person.

TCR: The book focuses on Evelyn Nesbit’s entanglements with the men at the center of the case, but her own life as an actress post-trials merits attention.

Baatz:  At the end of her life, she was quoted as saying “The lucky person was Stanford White,” and she gave the impression that old age was very lonely and sad, but I don’t really think that was true.  She got to move to California to be with her son who was supporting her; she had three grandchildren, she was in a pottery studio.

But her life immediately after the murder was a little bit up and down because she married again, she was in vaudeville, she becomes addicted to morphine and to cocaine, and she has her son; and then in the 1920s and 1930s she had to make a living singing in the cabarets in New York and Atlantic City, but then her son is her savior and he supports her.

TCR: Do you consider your book a sort of redemption of Evelyn Nesbit?

Baatz: She is a very young, 16 years old when all of this happens, very naive, what experience does she have? She’s never been to college, she’s had no high school education to speak of. She’s come to the big city, she’s caught in between these two men, one is 47, one is 31. I felt that nobody in previous accounts respected her as a person.

I think my editor was a little bit frustrated that there was too much Harry Thaw and not enough Evelyn Nesbit, but the problem with that is that once this murder case happened and the trials were over, there was very little information about her. But I think my book redeems her.

Julia Pagnamenta is a TCR news intern. She welcomes comments from readers.


The LAPD’s Charlie Beck: How to Reform a Police Department

After eight years heading one of the nation’s largest police agencies, retiring Los Angeles Police Chief Charlie Beck gives TCR a frank assessment of the challenges of being a big-city reform chief, what it takes to change the culture of American policing today, and some key lessons he learned.

As he prepares to move on after eight years heading one of the nation’s largest police agencies, Los Angeles Police Chief Charlie Beck sits down with TCR’s West Coast bureau Chief Joe Domanick for a candid conversation about the challenges of being a big-city reform chief, what it takes to change the culture of American policing today, and some key lessons he learned along the way.

 (Note: This interview has been abridged and edited for clarity.)

 The Crime Report: Let’s pretend you’re speaking to a group of reform-minded, big-city chiefs. What would you tell them is essential to understand about changing a department’s culture?

Charlie Beck: That you change culture by everything you do. Just saying that you want a more empathetic, more community-building police department focused on helping communities is only one percent of culture change.

What’s essential is how you interact with people and model your behavior. One of my core beliefs is that the way a chief treats his cops is the way that they will treat the community. If you treat cops like fools, or if you’re over-dependent on harsh discipline, that’s what they’ll learn [and act out on the street]. They’ll see the way that you deal with conflict and adversity, and how you deal with people you don’t agree with, and act accordingly.

TCR: Once you were selected chief, did you actually sit down and write a reform plan?

Charlie Beck

LAPD Chief Charlie Beck. Photo by Ruperto Miller via Flickr

Beck: Yes. A lot of times managers think: I don’t need that, I know where I’m going. But the organization needs a plan. It needs a road map. We wrote a list of things we wanted to do. Of course, they change all the time. You achieve goals or you modify goals, the circumstances change. You can’t write ‘em on a chalkboard and just leave them up there for eight years. You’ve got to look at them constantly; while doing self-evaluation to realize what you’re good at and what you’re not. And then you’ve got to find people to fill the gaps. That’s really important.

TCR: One of the biggest challenges a reform chief faces is getting buy-in from the rank-and-file and key opinion-makers within a department. How did you go about it?

Beck: I did it the obvious way ─ through the traditional chain-of-command-stuff [from the top down.] But I also believe in managing from the ground up. So I went to roll calls in every station. And in every division for my first three years as chief I worked a partial shift side-by-side with officers in their black and whites. And I did all things that are iconic culturally within the LAPD that demonstrate that we’re all cut from the same basic cloth. For example, I hate to run [in department races] but I do it because it’s part of the culture.

TCR: And what did demonstrating that we’re all in this together get you?

Beck: When you say things or take actions that [many officers] don’t intrinsically agree with, like, for example, undocumented folks should be able to obtain driver’s licenses, they’ll think, “I don’t really get why that’s important to (the chief), but I’ll just wait and see.” In other words, it’s not necessarily that they buy into your ideas. It’s that they buy in to you as having their best interests at heart.

TCR: What else can you say about troop buy-in?

Beck: First, understand that it’s going to be very difficult to change an organization. Then create a bond with a peer leader in one station, and that bond spreads through the whole station. (Finally,) you want to create bonds, but not be thought of as one of the boys, because you’re not, and you have to make that clear If you want to command respect.

TCR: The [LAPD] union resisted many of your [progressive] reforms. But you were able to maneuver between a very liberal police commission and a very conservative union to get body/patrol car cameras, and a new de-escalation shooting policy. Talk a little about that.

Beck: First of all, you’ve got to understand why they want what they want, and you’ve got to know what you want and what you’re willing to settle for. Then you have to understand what the real sticking points are for the union. Second, always gauge who has the most support with the rank-and-file. You or the union?

Who will they follow? Make sure beforehand you’ve got capital in the bank [of good will] among the troops; and that you are as good as you can be on that part.

TCR: What’s the biggest lesson you learned about officer discipline?

Beck: Organizations want to overreact to small things and underreact to big things. That is very bad management. As a chief I want to insure that if officers do serious things from which there is no return, that they have no opportunity to return. So officers have to accept that kind of bottom line and deal with it.

But you also have to recognize what’s important and what’s not. We sometimes spend an enormous amount of resources over very little. You can lose a lot of organizational authority by being seen as the kind of a chief who is more concerned about what color your socks are than whether or not you’re telling the truth in court. You know [the LAPD’s] been that kind of organization before. My lesson to anybody is: Don’t do that.

TCR: What’s the most effective way to deal with a civilian oversight entity, the police commission in your case?

Beck: Involve those individuals with the members of the police department enough so they will grow to understand that these are by and large extremely good-intentioned, good-hearted people. And if they are involved enough, they’ll see just how difficult this job is. And that maybe that expectation of perfect handling of every incident or perfect handling of any incident in my estimation is something that is a false expectation. I think that’s really important.

And I think that’s what you have to look at with police commissioners. They’re going to influence you, but you can also influence them.

TCR: Talk about the political skills and strategies that a chief needs in order to deal with the multitude of players. 

Beck: First, you’ve got to know the lay of the land and that every city is different, and that every political group is different. Then you have to know who are the lever-pullers. Who are the actual people that have influence? That is an art in and of itself.

No one person can truly know that. That’s why you’ve got to surround yourself with people who understand at a really deep level who’s influential in these individual communities. Recognize that there are some people that you’re never going to change. Then you’ve also got to recognize those who, no matter what you do, will think that you’re fantastic. That’s about 10 percent on your end. And then work on the middle.

TCR: And how do you work on the middle?

Beck: First of all, you have to explain your actions as best you can in public so people gain trust. You’ve got to show respect, spend the time necessary─or make sure you have emissaries doing so if you can’t spend the time. In every major community I have a chief’s liaison person who works within that community to have an impact, especially in the African American community.

Then you have to know which divisions are important on the macro level. I have 21 divisions. Three or four of them could be a flashpoint for a riot; that could cause a huge political upheaval with very small incidents. A couple of others in which people have a huge political influence. And then you’ve got to pick the right people to go to these places, [people] who understand the dynamics.

People in these areas have one or two issues that they find immensely important. So you’ve got to recognize what those issues are, whether it’s human trafficking in the San Fernando Valley, or immigrant rights in East LA, or African-American interactions with police. You’ve got to not only know that, but make sure you work to address that with them individually. It’s just about understanding the way they are. If you don’t, then you need to find people who do, and use those people to educate you and to do the outreach in those communities that they have contact with.

TCR: How about recruit training? What are the first things a reform chief should tackle with recruit training so that when those recruits leave they understand the game as the chief wants it to be played?

Beck: When they get out of the academy, recruits are uninformed beyond the initial nuts and bolts of policing. They still have to learn about political savvy, understanding of the goals of the department, etc. What we’ve done to address that is bring the recruit class back after they’ve been out in the field for a year. Then they’re ready to understand the bigger policing picture. Because now they’re not worried about whether they’re going to keep their job, not afraid of the great unknown, what are the radio codes for a purse snatch. They’re just not ready for this stuff when they leave for the academy.

TCR: You’ve managed to keep yourself and your department out of the daily news cycle that was a key feature of the way most of your predecessors operated. Do you think that was effective, and useful?

Beck: I certainly have seen police chiefs and city attorneys who love being in the papers. They crave it. They solicit it. They take every opportunity to put themselves out there. I have no interest in that. I understand that I’m going to be out there plenty anyway.

Being a police chief is a serious job. We’re dealing with life and death, with people’s safety. When you talk, you should be taken seriously. Less is more. If you go out there every time somebody saves a cat out of a tree, clamoring for attention, pretty soon you’re just a loud person clamoring for attention, and people see that. You come out to the public for things that are important, that you do believe in and which you have some depth of understanding and ability to discuss.

TCR: Why do you think it served you well?

Beck: It’s added authority during the times when we do have to use the media. Because we do have to use the media. When I call the press conference I get the press, I get a lot of it. Because it’s not common. I think it gives you a bigger megaphone for the times when you need it. Again, the more you put yourself out there you also create vulnerability. The more times you talk the more opportunities to trip up and all that kind of thing.

TCR: What should future reform chiefs avoid at all costs?

Beck: Thinking the organization is more important than you are. Thinking that it is about you, or that an organization can be sacrificed for your own personal needs. That’s my bottom line. You cannot be seen as somebody who will throw employees or the organization as a whole under the bus in order to save yourself. And I’ve seen people who did that just lose all the authority. You have to avoid that at all costs.

That doesn’t mean you never take action. I’ve arrested employees, all that. But that’s not the same as abandoning somebody for political expediency. You cannot do that.

Joe Domanick

Joe Domanick

That shouldn’t stop you from calling it as it is when something has happened and doesn’t fit the standards of the organization. But you can’t shape the standards of the organization to fit unrealistic expectations.

See also: The LAPD’s Charlie Beck: A Chief for a Transformed City

Joe Domanick, Associate Director of the Center on Media, Crime and Justice at John Jay College and West Coast Bureau Chief of The Crime Report, is the author of four books on American Policing and incarceration. His latest, now out in paperback, is “Blue: The LAPD and the Battle to Redeem American Policing.” Joe welcomes comments from readers.


Life in a Rural Gang: Little Future, Less Hope

Big-city gangs may be more violent and newsworthy, but smaller and less violent versions are a worrying presence in many poor, rural communities. University of Arkansas sociologist Timothy Brown tells TCR what he learned while interviewing gang members in a Clarksdale, Ms., jail.

Violent big-city gangs have been the focus of research as well as media headlines over the past several years, but relatively little attention has been paid to gang activity in rural areas.

University of Arkansas sociologist Timothy Brown has been trying to fill in the blanks.

Brown, who first became interested in rural areas while writing his dissertation on the impact of the oil boom on a southern Louisiana community in the 1950s and 1960s, has spent the last three years interviewing pre-trial detainees—many of them self-declared members of a local branch of the Chicago-based Vice Lords and Gangster Disciples—inside the Coahoma County Jail in Clarksdale, Mississippi. The research, led by Missouri State University criminologist Julie Baldwin, is slated to be submitted to public health and criminal justice journals.

Timothy Brown

Timothy Brown

From his Little Rock, Ark., office, Brown talked recently with The Crime Report contributing editor Katti Gray about what he’s learned about gang involvement in the largely poor, Delta town of Clarksdale, which, according to the latest Census data, is home to 16, 272 people. The following is an abridged version of that conversation.

The Crime Report: What details of these alleged and admitted gang members’ personal stories struck you as especially illuminating?

Timothy Brown: There are two. One involves a young man who’d gotten a brand new pair of shoes that he really liked. He walked into the school wearing them and members of the Vice Lords marked him because his shoe had a swoosh on it. This young man told me that, at that point, he wasn’t even thinking about being in gang. And his swoosh wasn’t even the color the Vice Lords fly. But, after they marked him, it became a self-fulfilling prophecy. He joined the gang. That’s one of the micro aspects that’s so important to the research.

A second thing is this: My fiancé is a Veterans Administration psychologist specializing in treating veterans with post-traumatic stress disorder. The more I talked with her about that work and about my work interviewing these young people, I recognized that many of them probably suffer from PTSD. They’ve seen dead bodies. They’ve been shot at.

When I’m talking to them, they’re hyper-vigilant, looking around, checking their surroundings all the time.

Mainly, in terms of their overall attitude, they have a fatality about life. They wonder why they should even worry about the future.

TCR: How, specifically, did they express that fatalism?

Brown: The father of one of the young men had been in prison for most of that kid’s life. He told me that he’d only known his father for three-hour clips at a time, during visits to the prison. He, like others with a similar history, said nothing bad about his dad. But you’d see in their eyes this pain that they’d learned to neutralize. That’s what happens. I don’t think many of them really focus or really dig down into the history of where their struggle is rooted.

TCR: Interviewing can be very hard work, with no guarantees of getting answers. How did you navigate that?

Brown: I’m a white male and, in many ways, the symbol of their oppression. When I first started, I’m thinking, to myself, that they’re not going to talk to me. But they did. Not many of them declined my request to ask them questions.

Still, I’m well aware that they are in jail, looking for anything that might get them a few minutes of sunlight—because their cells were in the windowless basement of that jail. I simply said to them, “I want to hear your story.” I don’t think many of them had heard that before.

They’d start out by saying, “I’m not in a gang.” But, an hour later, they’d be giving me all these details of gang life and how they got caught up in it.

TCR: How’d you frame the interview questions?

Brown: I tried to let them lead the narrative … about gang entry and exit, the push-push-and-pull of this, the why’s of this. We also wanted to get family history, how they moved, how their family had moved. Some interviews were as short as half-an-hour, some as long as two-and-half hours. We found a lot of distrust in the police, and a huge number of kids who also were involved in a church community.

Other research has suggested that rural gangs are much more short-lived and unstable, often due to their smaller size. If three people in a five-member gang get arrested, the gang disbands. But we found the gangs in Clarksdale to be pretty stable, to have longevity. They haven’t gone away, even if, sometimes, they are somewhat nebulous. For example, if you grew up in a certain neighborhood in Clarksdale, you were assumed to be a member of the gang based in that neighborhood. Sometimes, those turned out to just be cliques, not real gangs at all. Sometimes the cliques became a kind of self-fulfilling prophecy, with kids who were assumed to be in gangs eventually joining gangs.

TCR: For what alleged crimes had they been arrested?

Brown: Homicide, aggravated assault, murder, capital murder, manslaughter, shooting inside a dwelling …One of the females I interviewed had found on Facebook that another young woman was messaging her boyfriend. The sheriff said that female was a sergeant-at-arms for a gang … She told me she’d graduated high school and was taking prep courses so that she could enroll at the community college. The sheriff’s people said, “Oh, she gave you her sob story.” There’s that kind of tension.

TCR: What drives gang membership and gang crime in a place like Clarksdale?

Brown: Contextually, it’s the same as what drives gangs in Chicago, New Orleans, Detroit. Also, since the 1970s, there’s been a huge population decline in Clarksdale. Of those living there now, only 52 percent of employable people are in the workforce; 40 percent of the people live in poverty; 33 percent of households with children are headed by single women. It’s the same pressures, same stresses, same anxieties that you have in distressed urban areas. It just happens at a slower pace.

So, when it comes to the pushes-and-pulls of gang affiliation, I don’t think there are many differences. Number 1, there are huge fears of being victimized. They think they can get protection from a gang; but, as with urban gangs, their victimization skyrockets once they’re a gang member. Number 2, there’s a failure of the community to offer legitimate jobs, and (there is a) belief that selling drugs is an alternative. Quickly, they find that no one is really making money that way. These young people are living in a different setting, but they are not different human beings. They may be more casual about their gang affiliation. Rural gangs may not be as advanced in their violence. But they’re still kids coming up in communities with so many similarities to urban communities.

TCR: How did members of Chicago-based gangs wind up in Clarksdale?

Brown: We spent about 90 hours interviewing 30 inmates in that jail, some but not all were affiliated with the gangs. Some self-disclosed that they were gang members. Mostly, they were kids who’ve moved to Mississippi with parents or grandparents, though there were gangs in town prior to their families’ relocating. But everyone we interviewed had at least a remote connection to a gang. If they were not affiliated, they knew someone who was. Two of the three females we interviewed were in a relationship with someone who was affiliated.

TCR: By race and age, what was the profile of those 30 interviewees?

Brown: Of those 30, 89 percent were African American, five percent were white and the remainder were Hispanic, with one Hispanic female included in the group. Their median age was 26, which is a bit older for gang members. Some were still awaiting indictments, and some had been waiting for quite a long time; their cases had been assigned to prosecutors whose caseloads are spread across four or five different counties.

TCR: How much attention have researchers and the broad law enforcement community given to rural gangs?

Brown: Not nearly enough. The National Gang Center did its National Gang Survey [querying law enforcement officials from 1996-2012 about gangs], and rural gang activity is counted in that. Still, while there is a large amount of data on urban gangs, the focus on rural gangs has lagged.

TCR: Why?

Brown: Largely, it’s a question of resources. Law enforcement agencies in cities clearly have a larger gang problem, if you’re talking in terms of sheer numbers. That doesn’t mean those smaller numbers of people being affected by rural gangs should be lost in the fold.

TCR: For you, what, so far, is one of the big takeaways of this research?

Brown: Clarksdale’s long past of slavery, blues music, sharecropping, race issues is the backdrop for this work. Now that I’m coding our research, I’m seeing even more clearly that there is a dearth of research on rural gangs and their crimes. When it comes to criminology, we can be so oriented toward what’s quantitative. But the statistics we use don’t necessarily apply to rural areas. You can’t simply run a regression analysis because the numbers may not be there and may not mean anything for a rural setting.

The flyover states and regions where there are rural gangs are being washed out of this discussion, simply because they are flyover places—not because there is no interest and no concern.

Katti Gray is a contributing editor of The Crime Report. She welcomes comments from readers.


For Some Conservatives, the Death Penalty is Another Big-Government Failure

Heather Beaudoin, leader of a conservative group fighting to end capital punishment, found new support for her cause at this month’s annual CPAC gathering of Republican activists. In a conversation with TCR, she reports a growing willingness among conservatives to embrace justice reform.

Heather Beaudoin is a Michigan native who has spent the last decade working with conservative and evangelical communities to repeal state death penalty laws. She is now the National Director of Conservatives Concerned About the Death Penalty (CCATDP), a project of the Brooklyn-based organization Equal Justice USA, which grew out of her work with the Montana Abolition Coalition—a group that also included advocates from the American Civil Liberties Union, the Montana Human Rights Network, the Montana Association of Christians, and the Montana Catholic Conference.

Since 2013, the CCATDP has established a presence at the annual Conservative Political Action Conference (CPAC), where it was joined this year by former Nebraska State Sen. Colby Coash, and Dale Brumfield of Virginians for Alternatives to the Death Penalty. In a chat with TCR Deputy Editor Victoria Mckenzie as the 2018 CPAC drew to a close, Beaudoin revealed that one of the most persuasive anti-death penalty arguments for conservatives is that the government can’t be trusted to operate a fair and efficient system of capital punishment. She also discussed why—even in the aftermath of outrage over the Florida school shootings—she’s found reason to hope that anti-death penalty forces will secure victories in some GOP-led states.

The Crime Report: The death penalty is an issue that deeply concerns the left, but perhaps for different reasons. Did you find that liberals tend to be a liability in terms of partnership when you are trying to engage conservative communities?

Beaudoin: No, not at all. Equal Justice USA is our parent organization, which is nonpartisan and does a lot with the progressive community as well. When I started doing this work in Montana, I was working on the ground trying to pass the anti-death penalty bill there. And I noticed that we did have a lot of conservatives, current and former legislators, lobbyists and GOP state party officials who were against the death penalty— but they didn’t come to the [Montana Abolition Coalition] table for the same reasons as the ACLU. They felt a little bit like outsiders.

Heather Beaudoin

Heather Beaudoin. Photo from

The ACLU was talking about human rights and things like that, and of course really sympathizing with the person who was on death row and the death row family members– and that’s not the same reason that conservatives come to it. Conservatives wanted to talk about limited government, and cost, and their pro-life views.

Obviously, a lot of times the ACLU and the Republican Party do not work together well. So we felt like, let’s create a space where we can talk about the reasons we as conservatives care about this issue. Let’s find a way to work together, but sort of have our own voice.

TCR: Can you talk about the conversations you had with Montana law enforcement?

Beaudoin: [Conservatives and law enforcement] were groups that I had a little bit of experience with, and groups that were traditionally in favor of the death penalty. In terms of law enforcement…I would literally sit down with anyone who was willing to talk with me. I would travel all over the state of Montana and have coffee with chiefs of police, county sheriffs, and county attorneys and do a lot of listening, to hear—when I talk to legislators I often hear “well we have to have the death penalty because it’s a priority for law enforcement,” (or) “we have to have it because it keeps the public safe.”

So I would ask them, where does it fall on your list of priorities, especially given the drastic cost of the death penalty? Is it worth it to you, the amount of money that we’re spending when we’re seeing counties that are bankrupted by a single death penalty case?

And they would say, no—we would rather have more officers on the street, or we would rather have more training for our officers, or better equipment. It was really fascinating that even when they supported the death penalty, they really acknowledged it’s not an effective public safety tool, it’s not a deterrent. And many of them were willing to speak out. I spoke to a lot of folks who worked at the prison, and talked about the effect that carrying out a death penalty had on the [staff], which is something that I never considered. I learned so much, and then was able to bring some of those voices to the table at legislative hearings so that legislators could consider that not all law enforcement feel the same— certainly there are law enforcement folks who believe we should have the death penalty, but not all of them.

TCR: Do you continue to focus on law enforcement?

Beaudoin: Not as much. Most of my focus is on conservatives and evangelicals. We have a group called Equal Justice USA Evangelical Network… I just spoke at the National Association of Evangelicals’ Christian Student Leadership Conference, [and] we do a lot with the Christian Community Development Association. So we’re kind of all over the place— we’ve had events at Wheaton College, we’ve had an event at Calvin College. That’s my favorite part of the work.

TCR: I caught the tail end of a panel via livestream which concluded with Nebraska Gov. Pete Ricketts’ comments on the importance of upholding the death penalty in the interest of public safety.

Beaudoin: Nebraska is a really interesting case, and Gov. Pete Ricketts in particular, because that was a state where they voted to repeal the death penalty, and there was a Republican-led effort by [former Senator] Colby Coash, who was with us at CPAC this time. The legislature there passed it with overwhelming Republican support. Governor Pete Ricketts vetoed it, and then [the legislature] had enough votes to override the veto.

Then, he and his father funded an effort to get the death penalty back on the ballot in Nebraska and send it to the general public, and they were able to do that. That’s how strongly he feels about the death penalty. And then of course it was reinstated. We lost, and now there is the death penalty on the books in Nebraska, although they don’t have a way to carry it out.

TCR: Let’s talk about Ohio and Pennsylvania, which are northern “outliers” when it comes to the death penalty.

Beaudoin: Ohio is of course a state that has a lot of upcoming executions, and we’re hopeful that Gov. John Kasich will be watching and listening and paying attention, and realizing that there are conservative and evangelical voices who do not support these executions being carried out.

I do work with the Equal Justice USA Evangelical Network…. there are plenty of groups doing really good work on the ground in Ohio and have been for a long time. There’s a group called OTSE, Ohioans to Stop Executions. What we’re doing is trying to raise up conservative and evangelical voices. We’re going to be having an event [either at an evangelical college, or at Ohio State], just to try to show Gov. Kasich that this is not an issue that just liberals are speaking out against—but that people who think like him, and are of the same mind, are also standing up to say “We don’t agree with this.” To say it’s the right thing to do to call off these executions— they should not go forward.

 Pennsylvania [is] another place that carries a lot of baggage. I was at a couple of events at CPAC with folks from Pennsylvania who also understand and care about the cost of the death penalty—and certainly they should get it, because they’ve really poured so much money into their capital punishment system, and now are not executing anyone.

TCR: One of Pennsylvania’s gubernatorial candidates, Scott Wagner, has recently stated he wants the death penalty for school shooters.

Beaudoin: It’s always hard when we hear politicians who maybe haven’t taken a real deep dive [into] the way the system works, kind of painting themselves into a corner— because there’s so much to learn. Like we saw in Nebraska, legislators, when they were given the opportunity to learn more and find out the facts, voted against the death penalty. Of course the general public doesn’t have that luxury, to be an expert on every issue. And so we didn’t win there

The thing that I tell people at CPAC, the biggest thing we talk about is [that] it’s one thing to support the death penalty philosophically or in theory—or even feel like morally, it’s OK. That morally, if you take a life, your life should be taken. We have plenty of supporters who feel that way. But when they look at the way the system is carried out… they look at the cost, they look at the fact that innocent people are sentenced to death— basically, it’s not worth it, and it’s time to let it go.

TCR: Have you ever gotten close enough to Gov. Ricketts to understand why he’s so committed to executions?

Beaudoin: That’s a good question. I do know that he lost a loved one to murder, and so that’s something that a lot of us have thought about— is this something that is pretty personal to him because he’s experienced that loss? I don’t know, and I don’t want to speak for him, but that’s possible.

We’ve worked with victims’ family members on both sides of this issue, and the thing that I take away, and certainly when I’m standing at a table at CPAC one of the things I hear in favor of the death penalty is that we do it for victims’ family members— especially in the wake of the Parkland shooting, right? When you’re dealing with all these family members who have lost loved ones.

Something that I found that was really mind-blowing to me when I started this work is that the death penalty often harms victims’ family members. It gives them this false promise that the death penalty is going to be carried out. And most likely it’s not— the sentence will be overturned, or the person will die of natural causes in prison, because the process takes so long. And we want it to take a long time, because we don’t want innocent people to be executed.

TCR: Have you taken on any issues you feel are “adjacent” to executions, for example the conditions for prisoners on death row?

Beaudoin: We haven’t… something that we’ve certainly put out statements on is botched executions, which we just saw in Alabama. We again see that as a failure of government to carry out executions well, and so many of these execution protocols are shrouded in secrecy. We don’t know where they’re getting the drugs, sometimes the drug combinations they’re using are untested, we don’t know the credentials of the staff who are carrying out the execution process.

So that, to us as conservatives, is despicable— there’s not transparency in government at all.

TCR: Is there a prevailing reason that drives people to your table at CPAC?

Beaudoin: I would say it’s probably a tie. Number one is that we don’t trust the government to deliver our mail, why on earth would we trust them to handle a system that takes the lives of its own citizens? That’s what I hear most frequently at CPAC. “I believe in limited government, I don’t trust the government to get this right.”

And then I hear about the cost. I’m always happy to see that more and more people understand that the death penalty is more expensive, because when I started doing this work back in 2008, that was something that folks just flat out wouldn’t believe.

Now people realize that it’s true, it does cost so much more. Of course folks at CPAC, all of them are fiscal conservatives and so to them this is another big bloated government program that is very costly— and what’s the return that we receive?

I would say probably limited government is the number one that I hear, and cost is the next one. Innocence is probably a third.

TCR: Where are you focusing your efforts this year?

Beaudoin: There are three states right now that have death penalty repeal bills that feel very possible and that we’re hopeful about, and all three are led by Republican legislators. There’s Washington, New Hampshire, and Utah. So we’re sort of sitting on the edge of our seats and doing what we can to push those over the edge, and of course those are the work of the state groups that have been pushing it for years. We’ll know within the next month or two whether those will go or not go…but they’ve certainly made progress.

TCR: What was interest like at the conference compared to previous years?

Beaudoin: I really do feel like this year felt different in terms of criminal justice reform. I felt a lot more hopeful this year than I have in the past— not just in terms of the death penalty, but in terms of all of the criminal justice topics that were discussed. It just felt like there was real momentum and a different sort of hope. I went to two different panels that were on criminal justice, and Right on Crime had a reception. And those were well attended.

TCR: Which panels were you able to catch?

Beaudoin: There was one about overzealous prosecutors that I loved. Of course there are great prosecutors in our country, and then there are prosecutors to whom it doesn’t matter if you’re guilty or innocent: if they decide that they’re going to convict you, it’s going to happen. And that’s exactly why you can’t support the death penalty. It was encouraging for me to hear folks in the conservative realm talking about problems like that within our justice system.

And then there was a panel on women being in chains during labor, who are inmates. Because I’m so death-penalty focused, there were a lot of things they were talking about that I didn’t know. There were women from Kentucky, and I understand Kentucky is doing a lot around criminal justice reform generally. We’ve always felt that it is a state where we should be able to pass anti-death penalty legislation. We’ve had lots of interest from Republicans there, but have just never been able to quite push it over the edge.

TCR: Did you see your own efforts reflected in either of the panels you attended?

Beaudoin: The one about prosecutors, absolutely— it could have been an anti-death penalty panel because of everything they were saying. There were people there who had direct experience with being railroaded by the criminal justice system. And that’s something that I’m realizing, is that sometimes it takes folks having a personal run-in with the criminal justice system for them to finally wake up and realize—whoa, this is a little scary. I think until you know someone that’s been touched by the justice system or until you yourself have been, it’s easy to say— we have a great system. Which we do, but it’s not perfect.

And there are very flawed individuals who have a lot of power in the system. So, people were telling personal stories… and when people were coming up to the table, they were telling us stories too about terrible things that had happened to them.

And the one on women’s rights in prison too, certainly—talking about human dignity of people behind bars, and how we should treat them with respect because they’re created in the image of God, and because we believe in redemption.

I heard that over and over again at CPAC this time about criminal justice reform, that no one is beyond redemption. And that’s why I do this work, that’s why I feel personally passionate about it. I believe with my whole heart, that no one is beyond redemption. So certainly I saw a lot of our messaging, even when they weren’t talking about the death penalty.

TCR: Can you help me understand what the resistance is to repealing the death penalty, among conservatives who still support it?

Beaudoin: So, it always goes this way: that there are just some people who deserve to die. That’s almost always what I hear. And the Parkland shooting came up a lot this weekend at CPAC, because people are feeling it in their gut, that this is horrific—and it is. So I think that often, people feel like the only way we can respond to this, the only answer we have, is to take away that person’s life. That’s the only thing that will suffice.

And so we say, we understand that. If you ever listen to floor debates on bills like this, like in Nebraska, you’ll hear our opposition bring up horrible case after horrible case, and tell all of the gruesome details of how people were tortured and killed. We get that— we realize there are people in the world [who] commit really terrible crimes. But we cannot legislate based on that. We can have that gut-level reaction as humans, we can feel that this is wrong and this person deserves to be held accountable, absolutely. But we cannot only get folks who have committed really terrible crimes and are guilty, and not get folks like Randy Steidl, the death row exoneree from Illinois, and 160 others like him who’ve been convicted and sentenced to death wrongfully.

And so that’s what we try to say—take a step back, and let’s not have the conversation about what people deserve. Let’s have the conversation about “can we get it right, and do we get it right?” And if we’re able to get people to that place, where they can say “I’m willing to be rational for a minute”—that’s when we can say, let’s look at this logically, let’s look at the facts, let’s look at what is a good public policy around this—instead of what we feel people deserve after something horrible.

Victoria Mckenzie is Deputy Editor of The Crime Report. She welcomes readers’ comments.


America’s ‘Shadow’ Vigilantes

What do the Three Strikes law, mandatory-minimums for drug offenders, the Stop Snitching campaign, and private police have in common? According to Paul H. Robinson, a law professor at the University of Pennsylvania Law School, they are all expressions of a “shadow” vigilantism that has spread in the contemporary U.S.—usually in response to perceived failures in the justice system.

What do the Three Strikes law, mandatory-minimums for drug offenders, the Stop Snitching campaign, and private police have in common? According to Paul H. Robinson, a law professor at the University of Pennsylvania Law School, they are all expressions of a “shadow” vigilantism that has spread in the contemporary U.S.—usually in response to perceived failures in the justice system.

shadow vigilantesThe forthcoming Shadow Vigilantes: How Distrust in the Justice System Breeds a New Kind of Lawlessness, which Robinson co-authored with his wife Sarah, a former sergeant in the US Army and social worker, explores how the impulse to take the law into their own hands has been a feature of Americans’ behavior since the Revolution.

In a conversation with TCR’s Julia Pagnamenta, Robinson explains why the history of vigilantism is more nuanced than the traditional view which defines vigilantes as groups like the KKK and white supremacists, and why vigilantism will continue to operate when disenfranchised individuals in society feel that the system is ignoring their concerns.

The Crime Report: Your book suggests that acts of vigilantism are very much tied to early American history. Can you explain?

Paul Robinson: Vigilantism certainly has, and for many good reasons, a very bad reputation. People tend to associate it with some horrendous Klu Klux Klan lynching. But of course it’s also true that it has somewhat more admirable roots in other places as well. The original American Revolution was really an act of vigilantism where the colonists thought they were being treated badly. England had not kept its end of the social contract, so they took the law into their own hands in the very dramatic way of declaring independence.

Another example is the story of the gold miners in San Francisco. This was a city overwhelmed by an influx of people either headed towards the gold hills in California or providing services in San Francisco to people headed to the gold hills, and with the swell of population came a government that for the most part was corrupt. The San Francisco vigilance committee formed itself from a large group of citizens who in very public ways went after criminals and held public trials completely independent of the official authorities. When they really did bring order back to the city, and once the government actually matured enough so that it wasn’t just a bunch of corrupt scoundrels, the vigilance committee disbanded itself.

TCR: You also mention a line in the U.S. Constitution that refers to the recourse that the American people can take when the government breaches its promise to protect its citizens. 

Robinson: Given what the creation story was for the United States, it is no surprise to find some language in the Constitution that specifically seems to support and recognize the legitimacy of some forms of vigilantism. This is a larger theme of the book: to say there really is such a thing in some circumstances as moral vigilantism. There are a lot of stories about the gay community in San Francisco being openly beaten where police ignore the anti-gay crimes. The same occurred in the South with the civil rights workers: blacks who were being victimized because of their civil rights leadership.

We have some modern-day stories about women in India who organized a vigilante group acting against men who publicly assaulted and groped women, and the police did little or nothing about it, and quite a few other stories where it’s hard not to read the story, see the extent of the victimization, see the extent of the violation of social contract by inherently indifferent police and authorities, and not be sympathetic to these groups that then openly become vigilantes.

TCR: Although the history of vigilantism in this country is more nuanced than the Klu Klux Klan, the history of white supremacist groups terrorizing and killing African-Americans is very much a part of American history… and one that is still playing out today.

Robinson: Those groups can’t claim to be vigilantes: nobody is victimizing them. Their expression of violence is just a product of their own racial bias. In that sort of situation you might well have some claim to moral vigilantism on part of the black community if the police weren’t taking seriously enough their victimization. Luckily, we are doing a little better than we were back in the Civil Rights era and the South, where a lot of civil rights groups did have to form their own vigilante groups to protect themselves.

The criminal justice system does take seriously that kind of victimization and is making prosecutions and providing protection so that we can avoid the need for black victims to form their own vigilante groups. Obviously, it’s an imperfect process at the moment, but certainly authorities are doing a better now than they did before.

TCR: Victimhood is crucial to understanding vigilantism. How do these two terms interconnect, or rather, how does one affect the other? 

 Robinson: Well certainly the victims themselves can feel the sting and frustration of the failures of justice in ways that other people can’t, and they may have the greatest motivation to become vigilantes. Whether it’s classic vigilantes or shadow vigilantes.

Human beings are built in a way that they care deeply about doing justice and avoiding injustice, and when they see that in the world around them, they are going to want to hold somebody accountable. If the criminal justice system is doing the best it can, they are willing to cut it a break and say, you know, it’s certainly trying. It’s very difficult to accurately reconstruct past events. We can’t expect it to be perfect. But when they see a criminal justice system that seems to be willfully frustrating justice, we know exactly what happened, we have compelling evidence of what happened, and we are still going to let this person walk away with no punishment, although they are clearly a rapist, or a murderer. What does that say?

TCR: Indeed, a theme in the book is the recurring ineffectiveness of government authorities in carrying out justice, especially for African-American communities.

Robinson: Right, that’s a classic invitation to moral vigilantism when it’s clear that the system isn’t going to do anything about it, and in fact is going to be complicit in the victimization itself.

TCR: You open the book with a harrowing example of a domestic abuse case. Maybe the criminal justice system shouldn’t handle cases of domestic abuse?

Robinson: I am not entirely sure I agree with that. To the extent that there are other institutions outside the criminal justice system that can attempt to reduce crime, reduce domestic violence or sexual violence, that’s wonderful, absolutely, let’s do that, but at the end of the day there is a social contract, and the criminal justice system has to step-up and provide that sort of protection. I think domestic violence is an example of how for decades the criminal justice system miserably failed. I mean there are some classic cases. The Torrington Police [in Connecticut] watched a woman [Tracey Thurman] get beat by her husband in front of them and it’s the umpteenth time that he’s done this, and they just stand around and watch.

Well, are we surprised that she, and most of the people she’s talked to, are just horribly offended with the police and the criminal justice system? Are we surprised that they don’t have the slightest confidence in the fairness and justice and effectiveness of that system? Are surprised that they would be happy to distort the system as needed from their point of view if that’s what was necessary to get the system to take this domestic violence more seriously? No, I think that’s human nature. I think that shadow vigilantism is a natural response to any time the criminal justice system systematically, apparently willingly, fails to do justice.

TCR: Right. You provide examples in the book where private citizens did take matters into their own hands and government agencies tacitly condoned their actions. 

Robinson: Yes, I mean the first half of the book is really about this struggle to recognize the legitimacy of vigilantism in these special cases, and at the same time to recognize that it’s very easy for vigilantism to slip past the boundaries of moral justification.

Once you’ve passed that signpost of what’s lawful and what’s criminal, and once you’ve justified moving into doing what’s criminal because you believe that you were morally justified as a vigilante to act or protect yourself, it’s very hard to know exactly where to stop. It’s very easy for a group to say, well, that didn’t work. Let’s do a little more. In fact, one of the chapters in the book is about reactions of communities to apparent police indifference to the increased use of drugs as essentially destroying their community, and some groups will certainly push back when the police don’t respond and seem indifferent to the damage that is being done to the community. They may step a little over the vigilante line by confronting drug dealers or crack houses.

I think one of the larger lessons from that is just to illustrate how easy it is once you’ve crossed that line to justify doing just a little more, and therefore always worrying whether you’ve passed the point about what is morally justifiable.

TCR: Do you see a correlation between this sort of vigilantism, of taking justice in your own hands, and the U.S. relationship with guns?

Paul H. Robinson

Paul H. Robinson

Robinson: I don’t see that connection. There are a lot of groups who have no particular interest in the Second Amendment, but who can say with some legitimate claim that the government has breached its social contract with them, and whether they care about the Second Amendment or not they are put in a difficult, if not impossible situation.

There’s a separate issue in moral vigilantism that is worth mentioning: even if a group is morally justified under their own terms, it’s simply from a larger societal point of view, a bad way to solve the problem of that group that is being victimized.

So, for example, one of the stories in the book is about a neighborhood that has a serious crime problem. They get together and create a neighborhood watch group that is fairly aggressive and they are actually extremely successful at reducing crime in their neighborhood, which you might see as a huge success story. This neighborhood watch group qualifies as vigilantes because they go a little outside the law sometimes, they are stepping in and doing what they think the police should be doing, but when you step back and look at the larger situation what you find is that [while] it’s now a better world for them because their crime rate is down so much, what in fact has happened is a lot of that crime has simply been pushed off into neighboring communities that don’t have as an effective neighborhood watch.

One of the problems of individual group vigilante action is that it’s not done at a larger stage, or national, or even city level, so it has that potential of simply solving the problem for one group at the expense of neighboring groups, and while it’s hard to deny that this is moral vigilante action, from a larger societal point of view it’s not a good solution.

Better that the government do that, extend more resources if need be, undertake the policy that we are better at reducing crime and apply that policy to all communities in the area. So it’s not a matter of just pushing the crime next door, but rather preventing it. That’s just an example of how, even if on its own terms moral vigilantism seems morally justifiable, it doesn’t necessarily mean it’s good for society.

TCR: You write about the 1993 kidnapping and murder of twelve-year-old Polly Klaas in Petaluma, California, Was the response to Klaas’ murder an example of a moral panic, in which a horrifying act became politicized and had devastating repercussions for people who found themselves swept up in this new tough-o- crime initiative? 

Robinson: Let me go back and introduce this notion of the shadow vigilante. The moral vigilantes we’ve been talking about so far are classic vigilantes in the sense that they are themselves going out into the street and using force, and otherwise breaking laws, and sort of substituting for the police. They are doing what they think the police and the criminal justice system should be doing. But in some ways, that takes an unusual individual. Most of us just aren’t programmed to go out and become criminals ourselves.

However, the same frustrations that generate classic vigilantism also generate shadow vigilantism. They don’t go out into the streets, but what they do is less obvious, and in ways that don’t endanger them personally nearly as much. They nonetheless act in a way that undermines the criminal justice process: they try to subvert the process to push it to do what they think it should be doing. They manipulate the criminal justice process, and this I would argue happens a lot because it’s easy for people to do, there is nothing on the line.

Ordinary people have a role in the criminal justice process. Are they going to decide to report a crime that they see? Are they going to help investigators? Are they going to as jurors follow their jury instructions, or are they going to ignore the law and do what they want? Or in a grand jury, are they going to follow their legal instructions?

Or are they going to, for example, support policies like (California’s) Three Strikes law that seem like obvious overreach? A lot of its political support comes from people who are frustrated because they don’t see the current system as effectively dealing with the kind of offenses that now have mandatory minimums, and the kinds of offenders that fall under Three Strikes.

The problem with shadow vigilantes is that they are much more dangerous because they are much more common, and because there is not much you can do about them. And it all happens in the shadows, so you don’t even know it’s going on, and it’s not just ordinary citizens. Shadow vigilantism is something that is inspired by participants in the process as well, whether you are talking about police or prosecutors, or sometimes with the acquiescence of judges.

TCR: How does law enforcement contribute to shadow vigilantism? What are the implications on the criminal justice system as a whole?

Robinson: To give an example, police “testilying” is a phrase invented by New York police officers, invented because they wanted to distinguish regular lying under oath, which they considered entirely inappropriate, to lying with regard to, for example, what they considered the technicalities of the very obscure search and seizure rules.

This is just an example of a shadow vigilante who is frustrated by the systems, sort of an intentional failure of justice. This is how they respond. It’s not going out into the streets, and getting in fights, rather it is manipulating and distorting the system so that system will be more likely to impose the deserved justice that they think should be imposed.

TCR: Search and seizure rules are a point of contention between crime control and civil liberties advocates. What is your perpective?

Robinson: I would say, first, you can’t have a civilized, liberal democracy without having some form of Fourth Amendment that limits police intrusion in our personal lives. I mean that’s absolutely essential, and you need a way to enforce those rights. You can’t just have the Fourth Amendment on the books and then do nothing about it, so police are sort of free to intrude wherever they want, and though it’s a violation of the rules of the books, they can get away with it because there is no enforcement. There has to be some kind of enforcement mechanism. However, when we adopt the exclusionary rule as our enforcement mechanism [this] is a rule that on its face is designed to frustrate justice.

At the very least I would say this: every time we adopt a rule that we know is going to frustrate punishing people to the extent that they deserve it, no more, no less, every time we adopt a just as frustrating rule, we ought to understand that there is a hidden cost. That every time we do that the moral credibility of the system is undermined and people are going to be less likely to defer to it, to give it some kind of moral authority. Every time we approve these frustrating doctrines we are much more likely to inspire shadow vigilantes to feel morally justified in distorting the law to their own purposes.

I think it’s no coincidence that the Three Strikes doctrine, these mandatory minimums, are a problem that we currently have after a decade or more of the system’s reputation for letting people off on technicalities or tolerating really inconsistent sentencing where if you get the right judge you can walk away without no punishment at all. Once the system’s credibility for giving just punishment is undermined, well surprise, surprise, we know have these distortions in the other direction.

Part of the problem with shadow vigilantism is that it promotes a really damaging response. Once you have a system where everybody knows that there is this police “testilying,” everybody knows there are these mandatory sentences, and that these Three Strikes mechanisms are generating sentences that are well beyond what the community thinks is really just, once you have that kind of distorted system, are you surprised that there is then a backlash?

TCR: The Stop Snitching campaign arose from a mistrust of the police in some communities. Is that another example of the backlash you describe?

Robinson: The Stop Snitching campaign is a tragic development, because, of course, all it’s going to do is to reduce the effectiveness of crime control and make things worse, and increase victimization. It’s outrageous how the black victimization rates are dramatically higher. That’s a walking tragedy, but you can understand where Stop Snitching came from. You have a system that has a built-in police “testilying,” plus exaggerated punishment routinely under Three Strikes and mandatory minimums. Are we surprised then that there are some neighborhoods where the system is the enemy? No. The distortions that shadow vigilantism creates inspire its own backlash through Stop Snitching, and a lot of other ways that people think that they then have a reason to undermine the system further and it’s a downward spiral.

TCR: There is a lot of emphasis in the book on the failures of the criminal justice system being tied to offenders not receiving just punishment for crimes they committed, but the opposite argument can be made, that the U.S. criminal justice systems is one of the most punitive in the world. Can this in itself not be considered a failure of justice?

Robinson: Frankly, yes, I think that’s right. (Our system) tends to have exaggerated punishment at the high end, but in part I think that is a product of this shadow vigilantism distortion process that I talk about in the book. Having all those exaggerated penalties is a product in part of the frustration of the system not imposing punishment that was deserved. You know, we could have skipped that whole couple of decades where individual judges were free to just let murderers walk; well we could have saved ourselves a lot of the headaches that we have know with these crazy mandatory minimums.

TCR: What decades are you referring to?

Paul H. Robinson: Well, this is back in the 60s and 70s, before the advent of sentencing guidelines, there was an enormous amount of judicial discretion allowed. We thought it was quite justified. The problem of course was that a lot judges were quite idiosyncratic in both directions unfortunately, but the fact is that when ordinary people see that kind of disparity in sentencing, [they] are offended on both ends, and not just offended when somebody gets a lot more punishment than they deserve, they are also offended by people getting a lot less punishment than they deserve, and they are likely to react to what they see as the dysfunction in the process. One of the ways to react to people getting a lot less punishment than they deserve is to put in a set of mandatory minimums, which I think is tragic.

TCR: Do you think that the recourse to privatizing sectors of the criminal justice system leads to increased vigilantism? 

Robinson: There are many more private police than public police. We really have privatized policing in many areas. Certainly the motivation for hiring private police is that you don’t trust the public police, but there are unfortunate consequences that come from that, and one of the unfortunate consequences, of course, is that you can get effective policing only if you can financially afford it. If you can live in one of those communities that can afford private policing, well great, if you don’t, well then you’re screwed.

This is in part what contributes to the dramatic over-victimization of black communities. Most black neighborhoods are dependent on public policing. In a perfect world, we would have a public police department that was effective enough; in a criminal justice system with policing rules and exclusionary rules that cared enough about justice so that public police could be effective enough that everybody would find the services they offer to be acceptable. We’d have no further need for private policing and everybody was assured of that same minimum level of protection.

Julia Pagnamenta is a news intern with TCR. Readers’ comments are welcome.


Can a Jury Alone Decide Guilt?

Prosecutors have too often left it up to juries to sift through evidence of cases against individuals whom they decided were guilty of their crimes without a thorough investigation, says Brooklyn (NY) DA Eric Gonzalez. He adds his office is making sure that never happens again.

Is it easier to take a second look at suspect convictions when crime rates have declined, and the public is no longer clamoring for tough-on-crime strategies from their prosecutors and police?

Brooklyn (NY) District Attorney Eric Gonzalez argues that prosecutors in fact should beware of the opposite problem: when crime rates accelerate, critical evidence that might exonerate a defendant can be sidestepped by DAs who are too eager to satisfy the public’s demand for quick convictions.

Eric Gonzalez

Brooklyn (NY) District Attorney Eric Gonzalez

In a conversation with The Crime Report’s Victoria Mckenzie during last week’s John Jay/Guggenheim Symposium on Crime in America, Gonzalez conceded that prosecutors too often left it to jurors to decide on their own how to judge the credibility of both witnesses and evidence without pursuing thorough investigations.

The Crime Report: Since your Conviction Review Unit is handling cases that are decades old, are you able to see whether the decline of jury trials have had an effect on wrongful convictions either way?

Eric Gonzalez: Most of the cases that we’ve overturned have been jury trial cases. We have overturned a plea in one case, where a person was facing deportation, and we found…fabrication. But most of the cases have been jury trials. I’m going to say, and this is controversial in a way, but what I found is— especially in the 1980s and 1990s, when the homicide rate in Brooklyn (left) over 800 people killed, that the volume of cases weren’t very well investigated.

And often if there was probable cause, a lot of these cases would be put before juries with the kind of concept of “let the jury decide.” Make out a legally sufficient prosecution, but let the jury decide.

I think that today we look at these cases a little bit more critically. We don’t abdicate our responsibilities as prosecutors to make sure we have a certain moral certainty of the defendant’s guilt before giving it to the juror to say “you decide.”

That is something I am very critical of, and in some of these cases I think prosecutors could have stopped the prosecution of the case saying they had credibility questions about the witnesses. In the past maybe we allowed jurors to decide credibility, and sort of stepped back from making sure that we believed in their guilt.

TCR: So your review unit is not handling cases where the defendant pled out even if he/she may have been innocent, just to get out of jail etc.

EG: What we’re focusing in on right now are currently cases where the person is still incarcerated. And a lot of these plea cases, especially with low level crime, the person is pleading in order to get out of prison, and they’re moving on with their lives and they don’t have the resources or the organizations like the Innocence Project going back and bringing these petitions.

We have looked at pleas, we do look at pleas, but we’re really focusing our resources on the people currently incarcerated. So I think in a lot of plea cases you don’t have people still in jail.

Victoria Mckenzie is Deputy Editor of The Crime Report. Readers’ comments are welcome.


Rape and the Justice System: When Police Fail to Listen

Two Pulitzer Prize-winning reporters uncovered the trail of a serial rapist and two very different police investigations. TCR talks with one of the journalists who followed the story.

rape in americaIn 2008, 18-year-old “Marie” was raped in her apartment near Seattle, Washington. But within a few days of reporting the assault to police, Marie, whose full name remains unidentified, became the subject of the police investigation.

As Pulitzer Prize winning reporters T. Christian Miller and Ken Armstrong recount in in their book A False Report: A True Story of Rape, she didn’t act according to police preconceptions of how rape victims should behave. And when they received a phone call casting even more doubts, they dropped the investigation.

Then Marie’s attacker went on to rape several more women in Colorado.

Armstrong and Miller argue the story is an example of how preconceived notions influence police investigations and raise questions about the fairness of the justice system. In a conversation with TCR staff writer Megan Hadley, Ken Armstrong explains how reporters working in two different cities came together on the investigation, what it taught them about the media’s influence on sexual assault cases, and whether the gender of  investigating officers makes a difference in such cases.

The Crime Report: How did you first become interested in the case of a possible serial rapist out in Colorado?

Ken Armstrong: I lived in Seattle, so I had seen coverage in the Seattle Times of the rapists’ arrest and it turned out he had also raped a woman in Washington [named Marie], who had reported the crime and not been believed. What was missing from the coverage was Marie’s personal account. She had not spoken to the media about what she had gone through. What I was hoping to get were details on how the police investigation in Washington went off the rails. I was hoping to be able to reconstruct how the investigators first began to doubt the woman’s account, and how those doubts spread.

TCR: Where did you and your co-author, T. Christian Miller, find each other in the story?

ken armstrong

Ken Armstrong

Armstrong: It was a really unusual set of circumstances. I was working for The Marshall Project when I began working on the story in 2015, and T was working for ProPublica. He was interested in reporting on the investigation in Colorado because he heard about the outstanding work that the detectives there had done. So he wanted to profile an investigation done well–done spectacularly well. I was looking at the other half of this story, in Washington, in terms of what went wrong. Both of us intended to fill out our reporting by figuring out what was happening in the other state.

T crossed state lines first. He placed a call to Marie’s attorney in Washington and found out there was another reporter working on the same story. So he told his editor, and they decided, instead of rushing the story into print in order to beat us, they would reach out and see if we wanted to work on it together. So that’s what we did. It was pretty serendipitous. I had half the story based on what happened in Washington and he had the other half based on what happened in Colorado, so we were able to walk those two paths together.

TCR: Early in the book, you mention that cops take different approaches to investigating a rape because there is no universal consensus for the best way to solve it. Should there be necessary steps that police officers must take when investigating rape claims?

Armstrong: I do think there can be best practices. There needs to be a consensus that the most important aspect of any investigation is the evidence. Evidence trumps assumptions. You can’t be swayed by pre-conceptions or assumptions about what someone should act like when they get hurt. That’s what happened here. A lot of people around Marie had pre-conceptions about how she should act because she had been raped. And when she didn’t meet those expectations, they began doubting her. And one of the people who doubted her called the police, and then the police began doubting her.

That didn’t happen in Colorado. Detectives (there) investigated each of the reports thoroughly and they let evidence guide them towards what was the proper conclusion. So to me, it’s the idea that you have to investigate thoroughly and completely, and you can’t be blinded by your assumptions about what every victim should be doing.

TCR: You note that most of the police force is male-dominated, with a macho, hierarchical and militaristic mindset. Is that why so many rape cases go unsolved?

Armstrong: I don’t know if you can attribute it to gender- it did happen to be the case here though. The cases that were solved in Colorado, two of the lead detectives there were women. And the case that was so mishandled in Washington, the lead detective was a man. But I think what is most important is competence, compassion, patience and understanding and those qualities are not limited to either gender.

There have been studies showing that female police officers can be more patient and understanding, particularly in the case of domestic violence, and it’s possible that you might see a carry-over to rape cases. But I think that it’s the qualities I just described rather than the gender of the detective or the officer.

TCR: You also mention the public’s influence on police investigations, quoting a retired police sergeant, who said “people outside of law enforcement didn’t want to talk about sexual assault.”  Is that changing, in light of  the recent cases involving Larry Nassar, Harvey Weinstein and others?

Armstrong: That is changing. We’re seeing that with the #MeToo movement.  There is a real realization about how prevalent this problem is and how it needs to be dealt with directly and in a public fashion.  The examples you just mentioned with Weinstein and all kinds of cases that have been written about in the past year.

TCR: In the book, you include multiple chapters from the perspective of the rapist, detailing the “monster within” that he struggled with for many years. Did you want readers to sympathize with the serial rapist?

Armstrong: No we did not want readers to sympathize with him. We wanted to interview him for the same reason the FBI wanted to interview him after he was caught, to gain a better understanding of what drove him and to get a better understanding of how he avoided being caught for so long. The FBI agent spent four hours with him afterwards, trying to gain an understanding of what steps he had taken to avoid being caught, so that the police could benefit from that knowledge, and hopefully incorporate some of that knowledge towards how to investigate cases going forward.

TCR: Do you think, generally, someone convicted of a crime can go back and help police catch other perpetrators?

Armstrong: They can. This is why you often see police officers wanting to go and interview people after they have been caught. The more you understand about a criminal, the better your chances of catching other people going forward.

 TCR: You also include chapters from the perspective of Marie, the rape victim who police officers refused to believe. What are some of the issues that stem from pre-conceived notions about how a rape victim should act?

Armstrong: I think some people have an expectation that a rape victim would be crying, would be hysterical, and some are. But some aren’t. Some have almost no affect, their voice is flat, their appearance is flat. When you look at what happened with Marie, the people around her expected her to be hysterical and crying and they were taken back when she spoke with so little emotion. When she didn’t make eye contact, some people found that to be unusual. When she didn’t hug someone she would usually hug, people found that to be unusual. At one point she was giggling and people thought that was unusual.

People were constantly looking for behavior from her to align with what they expected, and when they didn’t see it they became suspicious, and that extended to both the people who were friends and family, and to police officers investigating the case.

TCR: What can police departments do to ensure that survivors are not re-victimized by the very institutions that are sworn to protect them?

Armstrong: One big element is to listen. Also, how you speak to someone who has been hurt and how you question them is important. The big problem in a number of cases we looked at is the police officers didn’t interview people as victims. Instead they interrogated them as suspects and treated them as though they were someone who committed a robbery. They used interrogation techniques that are grossly inappropriate in a setting like this.

Those interrogation techniques put an extraordinary amount of pressure on people, and when you see rape victims who were raped recant their story, you have to understand the interrogation techniques and how powerful they are.

TCR: You also note the layers of doubt that afflict every stage of a rape prosecution including the victim doubting themselves, police doubting, prosecutors and juries doubting. So, what needs to change in order for victims who are telling the truth to receive justice for the crimes committed against them?

Armstrong: I think it’s important to not start by doubting. When someone reports being raped, listen and investigate and let the evidence take you to the right conclusion.

Megan Hadley is a staff writer for The Crime Report. She welcomes comments from readers.