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America Had Fewer Executions In 2017 Than In 23 Of The Last 25 Years

Why Execution Numbers Continue To Fall Off A Cliff

David McNew / Getty Images

America Had Fewer Executions In 2017 Than In 23 Of The Last 25 Years

Why Execution Numbers Continue To Fall Off A Cliff

Midday on Tuesday, November 28, the Texas Court of Criminal appeals stayedthe execution of Juan Castillo, who was convicted and sentenced to death as the trigger-man in a 2003 robbery-murder on a San Antonio lovers’ lane. At Castillo’s trial, another inmate testified that Castillo had confessed his role in the crime. That wasn’t true; in what has become a familiar scenario, the inmate recently signed an affidavit declaring that that he made the confession up to curry favor with the State in his own case. The stay was significant for another reason: Castillo was the last American inmate scheduled for a 2017 execution. Every execution concludes a distinct story worth telling, but the end-of-year statistics generate a blaring headline: execution activity continues to fall off a cliff, and is concentrating in a small cohort of capitally-active jurisdictions.

America’s execution activity is dwindling. There were twenty-three executions in 2017. To put that in perspective, there were ninety-eight executions in 1999. Those numbers are not outliers; they are representative of the execution activity during each of the two eras. Execution activity between 1999 and 2001 was well over triple what it was between 2015 and 2017 (eighty-three to twenty-four). Execution activity bottomed out in 2016, when American jurisdictions only executed twenty people. Texas, the most active death penalty jurisdiction in the country, executed thirty-five people in 1999. In 2017, it executed seven, the lowest number since 1996. One might be inclined towards an obvious explanation — American jurisdictions are sentencing fewer people to death, so they are executing fewer of them. That theory, however, fails to account for the fact that death rows are crowded enough to keep the execution chambers quite busy without a new supply of death-sentenced inmates, even in jurisdictions experiencing a slowdown.

That slowdown has to do with a few other things. First, there’s growing judicial acceptance of science about wrongful convictions. Whereas previous generations of judges were conditioned to think of lengthy post-conviction litigation almost exclusively as a means of stalling, there is growing awareness that — particularly in death cases — there may be serious innocence-related errors capable of being corrected. “Death qualified” juries pruned of community members having philosophical objections to executions tended over-credit eyewitness testimony, shoddy forensic evidence, and incentivized-witness accounts. That change in judicial attitudes corresponds with what seems to be a change in the practices of State’s Attorneys, who are relatively more willing to accede to proceedings involving new evidence.

Second, even when capital sentences are lawful, problems with execution method seem to be throttling the execution rate. California has America’s largest death row but hasn’t executed anyone since 2006 because it lacks a lawful lethal injection protocol. As drug manufacturers have moved to prevent their products from being used in executions, a number of American jurisdictions have struggled to obtain an alternative supply. As a result, states seeking to execute inmates are being forced to litigate things like the acceptability of different lethal injection sequences, the use of lethal injection drugs from questionable foreign sources or compounding pharmacies, the use of lethal injection drugs nearing or past an expiration date, the availability of specialists necessary to deliver the drugs without causing excessive pain and suffering, the acceptability of abrupt changes in execution protocol, and the secrecy sometimes used to conceal attributes of the process. One need look no further than Arkansas to see just how spooked states are about lethal injection litigation — it tried to execute eight people in eight days because its batch of midazolam was about to expire.

Third, there’s lots of discussion about how expensive securing a death verdict is, and that’s true. The less-discussed truth is that executing the condemned also costs a small fortune. The number of constitutional challenges available to death row inmates is greater than what is available to those convicted of noncapital crimes, and they usually get superior post-conviction representation. Every state except for Alabama requires the appointment of post-conviction counsel in capital cases, and 18 U.S.C. § 3599 guarantees legal representation, including two lawyers, to capital inmates in federal proceedings. The State can no longer assume its ability to steamroll an in-over-his-head insurance lawyer working his first capital case. If it wants to execute someone, then it’s going to have to pay to do it. And if the entity that decides whether to move forward with executions is closely affiliated with the entity that bears the cost of the litigation, rising costs should reduce execution activity.

The data discloses a national decline in execution activity, but it also shows substantial geographic concentration. This year, there were eight states that had executions. A little over thirty percent of those executions were in Texas, actually down somewhat from the historical average of thirty-seven percent. (The Texas number partially reflects the fact that Harris County, America’s execution juggernaut, elected a new District Attorney that expressly campaigned on restrained use of the death penalty.) Between 1996 and 2000, American executions occurred in twenty-eight states and represented death sentences from 200 counties. Between 2011 and 2015, the figures dropped to fourteen states and 104 counties. In short, the geographic footprint of American execution activity is half of what it was just twenty years ago.

One might look at the shrinking execution footprint and just conclude that the shrinkage is entirely attributable to states that stop executing people. Nope. Even within tried-and-true retentionist jurisdictions, fewer and fewer counties are responsible for executions. Take the five jurisdictions that have imposed the most death sentences in the last twenty years. Fifty-seven Texas counties sentenced inmates executed between 1996 and 2000; that figure fell to twenty-seven in the period between 2011 and 2015. The story is the same in Oklahoma (fourteen to nine), Virginia (twenty-seven to three), and Missouri (fourteen to ten). Only Florida bucks the trend (ten to fourteen).

Others, including Justice BreyerRobert J. Smith, and Brandon L. Garrett, have documented, explained, and evaluated the concentration of death sentences. The causes of concentrating sentencing and execution activity, however, are distinct. I’ve devoted considerable energy to teasing out the differences. Certain localities produce disproportionate execution activity because the practice resides in what I call their “local muscle memory.” Speaking quite generally, a jurisdiction’s muscle memory is the correlated exercise of discretion by multiple local stakeholders, which is heavily influenced by the locality’s history of capital punishment practice. In other words, inertia matters — but more on that in a moment.

There is another, even more basic driver of concentration: money. The counties largely responsible for the executions in concentrating states are large and urban — i.e., they have big budgets. As the per-inmate cost of execution increases, so does the budgetary hit. Rural counties that would have to pay for the litigation necessary to execute an inmate are simply getting priced out of the execution market. The geographic distribution of Florida executions would seem superficially inconsistent with that hypothesis, but there is a wrinkle. In Florida, the county has no role in deciding whether to go ahead with the execution of a death-sentenced inmate. Unlike in Texas — where the District Attorney in the sentencing county must move for an execution date — in Florida, the Governor decides.

Moreover, it is precisely these large jurisdictions that are already the most proficient at the death penalty; they are the ones with the superior institutional muscle memory. The State’s Attorneys in these counties reside near the top of a steep learning curve that requires them, among other things, to secure execution dates, to defend against eleventh-hour collateral litigation in state and federal court, and to support the state attorney general and prison warden. The State’s Attorney offices in these counties are also the offices most capable of transmitting institutional knowledge from one generation of prosecutors to the next. What Professor David Dow said of Texas is equally true of virtually any capitally active county: “[It] executes so many people because it executes so many people. . . . [K]illing people is like most anything else; the more you do it, the better you get. If killing people were like playing the violin, [it] would have been selling out Carnegie Hall years ago.”

The Truth About Predictive Policing and Race

90-Day Crime Map, Oakland PD
City of Oakland

The Truth About Predictive Policing and Race

Sunday, the New York Times published a well-meaning op-ed about the fears of racial bias in artificial intelligence and predictive policing systems. The author, Bärí A. Williams, should be commended for engaging the debate about building “intelligent” computer systems to predict crime, and for framing these developments in racial justice terms. One thing we have learned about new technologies is that they routinely replicate deep-seated social inequalities — including racial discrimination. In just the last year, we have seen facial recognition technologies unable to accurately identify people of color, and familial DNA databases challenged as discriminatory to over-policed populations. Artificial intelligence policing systems will be no different. If you unthinkingly train A.I. models with racially-biased inputs, the outputs will reflect the underlying societal inequality.

But the issue of racial bias and predictive policing is more complicated than what is detailed in the op-ed. I should know. For several years, I have been researching predictive policing because I was concerned about the racial justice impacts of these new technologies. I am still concerned, but think we need to be clear where the real threats exist.

Take, for example, the situation in Oakland, California described in the op-ed. Ms. Williams eloquently writes:

It’s no wonder criminologists have raised red flags about the self-fulfilling nature of using historical crime data.

This hits close to home. An October 2016 study by the Human Rights Data Analysis Group concluded that if the Oakland Police Department used its 2010 record of drug-crimes information as the basis of an algorithm to guide policing, the department “would have dispatched officers almost exclusively to lower-income, minority neighborhoods,” despite the fact that public-health-based estimates suggest that drug use is much more widespread, taking place in many other parts of the city where my family and I live.

Those “lower-income, minority neighborhoods” contain the barbershop where I take my son for his monthly haircut and our favorite hoagie shop. Would I let him run ahead of me if I knew that simply setting foot on those sidewalks would make him more likely to be seen as a criminal in the eyes of the law?

These are honest fears.

If, as the op-ed suggested, Oakland police used drug arrest statistics to forecast where future crime would occur, then its crime predictions would be as racially discriminatory as the arrest activity. In essence, the crime prediction simply would be replicating arrest patterns (where police patrol), not drug use (where people use drugs). Police patterns might, thus, be influenced by socio-economic and racial factors — not the underlying prevalence of the crime. This would be a discriminatory result — which is why it is quite fortunate that Oakland is doing no such thing. In fact, the Human Rights Data Analysis Group (HRDAG) report that Ms. Williams cites is a hypothetical model examining how a predictive policing system could be racially biased. The HRDAG researchers received a lot of positive press about their study because it used a real predictive policing algorithm designed by PredPol, an actual predictive policing company. But, PredPol does not predict drug crimes, and does not use arrests in its algorithm, precisely because the company knows the results would be racially discriminatory. Nor does Oakland use PredPol. So, the hypothetical fear is not inaccurate, but the suggestion that this is the way predictive policing is actually being used around Oakland barbershops is slightly misleading.

Do not misunderstand this to be a minimization of the racial justice problems in Oakland. As Stanford Professor Jennifer Eberhardt and other researchers have shown, the Oakland Police Department has a demonstrated pattern of racial discrimination that impacts who gets stopped, arrested, and handcuffed — and which suggests deep systemic problems. But, linking real fears about racially unfair policing to hypothetical fears about predictive technologies (which are not being used as described) distorts the critique.

Similarly, the op-ed singles out HunchLab as a company which uses artificial intelligence to build predictive policing systems:

These downsides of A.I. are no secret. Despite this, state and local law enforcement agencies have begun to use predictive policing applications fueled by A.I. like HunchLab, which combines historical crime data, moon phases, location, census data and even professional sports team schedules to predict when and where crime will occur and even who’s likely to commit or be a victim of certain crimes.

The problem with historical crime data is that it’s based upon policing practices that already disproportionately hone in on blacks, Latinos, and those who live in low-income areas.

If the police have discriminated in the past, predictive technology reinforces and perpetuates the problem, sending more officers after people who we know are already targeted and unfairly treated.

This statement certainly has accurate and concerning elements to it. Systems designed on past crime reports (not just arrests) will focus police on poor communities of color in a way that might exacerbate over-policing. This self-fulfilling prophesy problem is something I and others have flagged as it relates to constitutional law, racial bias, and distortions of police practices. It is a worthy concern that directly impacts concerns about racial inequality.

But, here are two cautions to the op-ed’s analysis. The first is the need to be precise in identifying what technology you are critiquing. HunchLab is a place-based predictive policing technology. HunchLab does not do any person-based predictions, so the claim that HunchLab predicts “even who’s likely to commit or be a victim of certain crimes” is wrong and conflates place-based technologies with person-based systems like the Chicago Police Department’s “strategic subjects list” (a.k.a. the “heat list”). They are different systems with different concerns. Place-based predictive policing technologies (which forecast sites of criminal activity) and person-based predictive systems (which forecast individuals at risk for violence) are different in practice, theory, and design, and should not be lumped in the same analysis even if they both ultimately might negatively impact communities of color.

Second, technologies like HunchLab do not blindly follow the data. Instead, they recognize — reflecting the op-ed’s concern — that sometimes the policing remedy does more harm than good. So, in response to a concern about over-policing, HunchLab might re-weight the severity of crimes in their predictive models to avoid policing in an aggressive and unthinking manner. For example, if certain crimes are deemed less threatening to community order, HunchLab recommends less deterrence-based policing in those areas to avoid unnecessary police-citizen contact. The company specifically tweaks the model to avoid unnecessary contact that might increase racial tension. Not all systems do this, and some racially discriminatory impacts will remain, but HunchLab — which was singled out — does attempt to avoid the problem.

I am not minimizing the risks of predictive policing technologies on creating new forms of racial bias. In fact, I have made a scholarly career making similar critical arguments — and just wrote a book — The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement –that explains how race is a central problem with these new technologies. But, my point is that if you are going to criticize racial bias in predictive policing, you have to do it on the merits of the where the dangers actually lie. In my mind, the more immediate focus of concern should be the Chicago Police Department’s “heat list.” The heat list disproportionately includes men of color in its ever-expanding listpartially because the algorithm uses arrests as the inputs (which again, are more of a function of policing practices than crime realities).

I am also not minimizing the genuine fear that generated Ms. Williams’ op-ed. As anyone who has studied the history of policing in America knows, surveillance technologies tend to be used against communities of color first and in a disproportionate manner. Georgetown University Law School recently hosted a conference on the “color of surveillance” (the “color” unsurprisingly is predominantly black and brown). This reality must shape our critical reaction to any new technology which risks replicating old biases.

In the final analysis, op-eds and news stories about the dangers of racial bias in predictive technologies may be helpful (even when not completely precise), because they generate a societal fear that the companies will respond to through their products. If citizens react to the potential problems, the technology companies can respond and offer ways to solve those problems. In fact, new entrants into the predictive policing field have begun advertising themselves as offering solutions to the problem of racial bias in the data.

But, the danger of creating fear, without engaging the complexity of each technology, means that otherwise worthy arguments can be too easily defeated. Honest conversations are hard. Nuanced debates are less “headline worthy.” But, the future of policing depends on truthfully examining the technologies with an eye toward improving the capabilities and not demonizing the companies (unless they actually deserve it).

Racial bias is a real and future concern for predictive policing, but we need to be thoughtful in our criticisms and precise in our analysis. The future of big data policing depends on it.

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Not A Cardboard Cut Out: Cyntoia Brown and the Framing of a Victim

Not A Cardboard Cut Out: Cyntoia Brown and the Framing of a Victim

The evening of August 6th, 2004, 16-year old Cyntoia Brown shot and killed Johnny Allen, a 43-year-old Nashville resident who picked her up for sex. It was an act of self defense, she explained to police later; after Allen took her to his house, he showed Cyntoia multiple guns, including shotguns and rifles. Later in bed, as she described in court, he grabbed her violently by the genitals, his demeanor became threatening and, fearing for her life, she took a gun out of her purse and shot him.

Though Cyntoia acted to protect herself from the violence of an adult client, Nashville prosecutors argued that she shot Allen as part of a robbery. Cyntoia was tried as an adult and was convicted of first degree premeditated murder, first degree felony murder and “especially aggravated robbery” two years after her initial arrest on August 25th, 2006. She is currently serving concurrent life sentences in Tennessee and will only be eligible for parole after serving 51 years in prison.

In late November, Cyntoia’s case roared into the headlines again when celebrities like Rihanna, Kim Kardashian, and Lebron James shared details of her conviction on social media. Rihanna posted on Instagram: “Did we somehow change the definition of #JUSTICE along the way?? Something is horribly wrong when the system enables these rapists and the victim is thrown away for life! To each of you responsible for this child’s sentence I hope to God you don’t have children, because this could be your daughter being punished for punishing already!” Kim Kardashian shared on Twitterthat she had reached out to her personal attorneys to ask about how to #FreeCyntoiaBrown.

It’s unclear why Cyntoia’s case has re-emerged to capture the public’s imagination 13 years after her arrest. Charles Bone, one of Cyntoia’s lawyers, told Buzzfeed that he didn’t know why celebrities were now discovering Cyntoia’s case, but that he welcomed the attention. “This issue, in general, is worthy of a lot of publicity,” Bone said, “especially in the culture in which we live today.”

As petitions calling for Cyntoia’s release and letters demanding clemency circulate online, it’s worth considering the issues raised by Cyntoia’s conviction and the renewed push to free her from prison.

Here’s what has been established about her case in the court record: Cyntoia, who at the time of the incident was living in a room at a Nashville InTown Suites, said she went home with Allen because her pimp and boyfriend Garion McGlothen, nick-named “Kut Throat,” insisted that she needed to earn money. Kut Throat abused her physically and sexually throughout the approximately three week period in which she lived with him.

Cyntoia herself was able to talk about the night of her attack, and Allen’s death in the 2011 PBS documentary, “Me Facing Life: Cyntoia’s Story.” Cyntoia explained that she was looking to get a ride to East Nashville to engage in street-based sex work when she met Allen, who was scouring a Sonic Drive-In parking lot for sex workers. Allen propositioned her and attempted to haggle her down from $200, to $100; they finally agreed upon $150.

Cyntoia characterized her survival strategies as survival sex work or teenage prostitution for an adult pimp. While she says that she was coerced into sex work by Kut Throat, Cyntoia never described herself as a child sex slave, a term that is now being used to characterize her experience by some advocates on social media. Such sensationalist language is reductionist and obscures the complexities inherent in the experiences of young people in the sex trade and street economies. It is more helpful to turn to young women in the sex trade themselves for a better understanding of the terms they use to describe their own experiences.

Shira Hassan has worked with girls involved in the sex trade and street economies as the former co-director of the now defunct Chicago-based Young Women’s Empowerment Project. She defines the sex trade as “any way that girls are trading sex or sexuality, or forced to trade sex or sexuality, for anything like money, gifts, survival needs, documentation, places to stay, drugs.”

Survival sex and involvement in the sex trade are often the only means for young people to provide for themselves when they leave home. This is especially true for youth of color, queer and trans youth, who have less access to resources and opportunities. The realities faced by most teenagers engaged in survival sex are shaped by unsafe homes and housing, lack of access to employment, affordable housing, health care, including gender affirming health care, mental health resources, poverty, racism, queerphobia and misogyny.

The street economy, Hassan explained, encompasses “anything that you do for cash that’s not taxed. Whether that’s hair braiding, whether that’s selling CD’s on the corner, something that you’re gonna do that’s gonna get you money that isn’t reportable. Both of these methods are ways that girls have found to survive when they’re street-based.”

Trafficking, on the other hand, refers to any form of labor — including, but not limited to, sexual labor — by force, fraud or coercion. It’s true that there are young people who are trafficked and who experience extraordinary violence in the sex trade. But it is important not to assume that every young person who trades sex for money is trafficked, even if the law defines everyone under the age of 18 who trades sex as trafficked, regardless of their actual experience. Doing so ignores the complexity of their experiences — and does a disservice to them by denying them any agency or self-determination, including to define their own experiences and demand their own solutions. Their lives should not be flattened in the service of “perfect victim” narratives.

Cyntoia is not a cardboard cutout upon whom other adults can project their narratives of youth involvement in the sex trades. She is a young woman who has experienced horrible violence, but that is not all she is. She has her own story to tell, but by portraying her as a victim without agency, some of Cyntoia’s advocates make it more difficult for her story of self-defense, her fight to survive, and her resistance to violence to be respected. We need to find a way to describe all of her realities — both as a survivor of violence with the right to defend herself, and as a young woman who was doing her best to survive.

Will this renewed focus on Cyntoia serve to improve the lives of all young people in the sex trade and street economies? Or will the current attention and the framing of her as a victim of sex “slavery” or trafficking serve to further marginalize them by silencing their voices and complexities in service of pursuing a “perfect victim” narrative, one that Black women are routinely excluded from?

The consequences for young women who don’t fit the “perfect victim” narrative are significant — both in terms of being harshly punished for self-defense, or being framed as “traffickers” themselves and then threatened with long sentences under new laws ostensibly passed for their own protection. Even if not subjected to punishment by what we call “the criminal legal system” — because we believe there is no justice in this system — many of the new “trafficking” laws passed at the state level over the past decade may force them back into foster care and other systems that they have fled because of the harm they experienced. Or, coerce them into “treatment” that does nothing to address the conditions under which they entered the sex trade in the first place. If they don’t “comply” with what is expected of them as “perfect victims,” then they, like many other survivors of violence, find themselves caged in a cell instead of receiving the support they need and deserve.Prosecuting and incarcerating survivors of violence puts courts and prisons in the same punitive role as their abusers, which compounds and prolongs victims’ experience of ongoing trauma and abuse.

The push to keep Cyntoia a child is also troubling. Since the recent surge of interest in her case, graphic artists have created an image of Brown with the pigtails she donned during her trial, when she was 16, accompanied by the text, “Free Cyntoia.” Another image of her at a similar age has been appropriated into a meme, juxtaposed with the rapist Brock Turner’s mugshot, using her incorrect age, and unconfirmed case circumstances. Other memes have claimed a “paedophile sex trafficking ring” was responsible for the violence visited upon Cyntoia. Why are these images and memes being circulated? Is an adult, 29-year-old Black woman an unsympathetic victim? If so, why? Acknowledging trauma and resilience are often ignored in favor of the driving desire by the media and public to support only a perfect victim. Perfect victims are submissive, not aggressive; they don’t have histories of drug use or prior contact with the criminal legal system; and they are “innocent” and respectable.

The reality, however, is there are no perfect victims. Twenty-nine-year-old Cyntoia deserves to be free from prison and absolved of this “crime,” no less than 16 year-young Cyntoia should have been.

Cyntoia’s story, while tragic and unfair, is not exceptional. As we were writing this piece, Alisha Walker, another criminalized survivor, called us from Decatur Correctional Center, an Illinois prison where she has been incarcerated since March of this year (and, unless she is freed, will have to spend another 10 years). “She’s an amazing woman, so brave,” Alisha said of Cyntoia’s case. “Shit, she was 16? No one should be punished for enduring harm themselves. That girl was just doing what she had to do.”

Alisha Walker was just 19 years old when, in 2014, she was forced to defend herself and a friend from a violent client who demanded that they have unprotected sex with him and threatened them with rape and a knife. Alisha, like Cyntoia before her and so many before them, fought back. Her act of self-defense was met with the violence of a racist court system that branded her a manipulative criminal mastermind. Alisha and Cyntoia were both young Black women whose bodies were inscribed with inherent criminality and were, to some degree, presumed guilty until proven innocent. But the judicial system as currently constituted would and could not have allowed them to be seen as innocent. Instead, Cyntoia and Alisha’s radical acts of self-love and preservation were criminalized by those with authority; each had the carceral weight of racism and whorephobia stacked against them.

Courts historically mete out punishment disproportionate to the acts of self-defense by black women, femmes, and trans people. This criminalization of self-defense pre-date Cyntoia; we see this in the cases of survivors Lena Baker, Dessie Woods, and Rosa Lee Ingram for example. It has continued long after Cyntoia’s sentencing thirteen years ago. We see this same disproportionate punishment in the more recent cases of GiGi Thomas, CeCe McDonald, and Ky Peterson. And these are just the names and stories that we know; there are many others that never grab headlines or inspire social media or grassroots defense campaigns.

Let’s #FreeCyntoiaBrown — not only from the cage she has unjustly been held in for the past 13 years for fighting for her life, but also from narratives that take away her agency and police and control what it means to be survivor of violence. And let’s do the same for all young people in the sex trade, and all survivors of violence. In the words of the Young Women’s Empowerment Project, “Social justice for girls and young women in the sex trade means having the power to make all of the decisions about our own bodies and lives without policing, punishment, or violence…We are not the problem — we are the solution.”

Mariame Kaba is an organizer, educator & curator who founded & directs Project NIA and is a co-founder of Survived & Punished among other projects and organizations. Brit Schulte is a community organizer, member of the Justice for Alisha Walker defense campaign, and underemployed art historian currently based in Brooklyn. This commentary reflects the opinions and views of the writers and not necessarily those of In Justice Today.

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