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What if John McCain had been a prisoner in this country?


What you’ll read today

  • Spotlight: What if John McCain had been a prisoner in this country?

  • ‘We thought it was important to knock down doors.’

  • Columbus officer was under investigation when he shot and killed Donna Dalton

  • Kavanaugh gutted habeas rights for detainees

  • St. Louis prosecutor won’t work with certain cops anymore

  • South Carolina city profits by ticketing people who use profane language

  • The danger of risk assessments in California’s new bail law

In the Spotlight

What if John McCain had been a prisoner in this country?

As eulogies and elegies for Senator John McCain pour in, one of his achievements is lauded over and over: the Detainee Treatment Act of 2005. This measure, which he sponsored, barred “cruel, inhuman and degrading treatment” of prisoners in U.S. custody anywhere in the world. It grew from the revelations about prisoner torture at the now-notorious Abu Ghraib prison outside Baghdad. McCain said that although intelligence is needed to fight terrorism, “the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women.” Torturing prisoners lets “the cruel actions of a few to darken the reputation of our country in the eyes of millions.” When confronted with the claim from right-wing politicians that those very prisoners might commit the same atrocities if given the opportunity, McCain responded, “But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies.” He added, “What we are is a nation that upholds values and standards of behavior and treatment of all people.” [CNN]

The values that animated the legislation resonate today, even though some have argued, persuasively, that McCain later allowed politics to water down the law. McCain’s motivation stemmed from his experience as a prisoner of war in Vietnam, and came during the presidency of George W. Bush and the war on terror. It therefore focused on how the U.S. treats enemy combatants at home and abroad. But what if McCain had been incarcerated in this country? What if he had been similarly motivated to ensure that the U.S. treats every human in its custody with dignity and respect, including people incarcerated at home? What if we took to heart his willingness to possibly forego intelligence for the sake of our values? Would that mean that we would be willing to soften our stance against those who commit crimes, even violent crimes, to uphold our values?  If we want to treat McCain’s legacy with respect we might start by listening to his words: “This is about who we are.”

Originally, the term “dignity” meant only high social status and accompanying respect. The first president known to have used the term in the modern sense was Franklin Delano Roosevelt, who in 1939 warned that democracies risked a descent into dictatorship if they denied their people “as large a share of material success and of human dignity as they have a right to receive.” After the Nazis “exposed the desperate need for a universal commitment to humanity’s intrinsic worth, dignity became a staple of international human rights discourse,” writes professor Joseph Margulies. The first sentence of the UN’s Universal Declaration of Human Rights proclaims that “all human beings are born free and equal in dignity and rights.” The following year, Germany adopted a constitution that announced in its first article that “Human dignity is inviolable.” [Joseph Margulies / Verdict]

This commitment to dignity has informed the way Germany runs its prisons. Laws, staff culture, and a shared mission make dignity more than a legal abstraction. When a delegation of people concerned about the U.S. criminal justice system including academics, activists, and corrections leaders, toured German prisons in 2015, what they found amazed them: “The men serving time wore their own clothes, not prison uniforms,” wrote Nicholas Turner and Jeremy Travis upon their return. “They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs.” [Nicholas Turner and Jeremy Travis / New York Times]

The Supreme Court, in holding that California prisons were unconstitutionally overcrowded, said that the state was forcing people to live under conditions that deprived them of “the essence of human dignity inherent in all persons.” [Brown v. Plata]

Margulies argues that unlike liberty, which can be compromised for pragmatic reasons, dignity cannot be compromised. “The State cannot deprive someone of her dignity. It cannot—at least not legitimately—degrade her, or treat her as some might an animal,” he writes. “Unlike with liberty, the State cannot invoke the seductive language of imminent catastrophe to justify behavior that tramples on human dignity, nor may it say restrict dignity to some but not others—to the citizen, for instance, but not the visitor.” It extends “to all people, at all times, under all circumstances.” This is why dignity and only dignity “mitigates the most pernicious impulse in American history—viz., the frenzy to dehumanize, to construct mythical monsters who do not so much walk the street as haunt the imagination, and whose specter is invoked to justify yet another round of repression.”  [Joseph Margulies / Verdict]

If Americans took dignity seriously, our prisons would look more like Germany’s. We would grant aging and infirm people compassionate release. Corrections staff would never refer to their charges as “bodies,” as they regularly do today. We would never let a criminal conviction get in the way of safe housing or meaningful employment. As Pope Francis made clear earlier this summer, we would not have the death penalty, because it is, in his words, “an attack on the inviolability and dignity of the person.” We would focus on restorative justice, and honor the dignity of the victim as well. When incarceration is found to be necessary, it would not be for a day longer than needed, and the deprivation of liberty would be the only punishment. Then we could say, proudly, as McCain had hoped, “This is who we are.”

Stories From The Appeal

Lewis Conway Jr. at a recent campaign rally [Matthew Bradford/Hank+Tank Photography]

‘We Thought It Was Important to Knock Down Doors.’ Lewis Conway Jr., a formerly incarcerated activist running for Austin City Council, sits down with The Appeal. [Sylvia A. Harvey]

Columbus Officer Was Under Investigation When He Shot and Killed Donna Dalton. Community outrage mounts over Officer Andrew Mitchell’s killing of Dalton during an attempted prostitution arrest in Ohio. [Melissa Gira Grant]

Stories From Around the Country

Kavanaugh gutted habeas rights for detainees: As an appeals court judge, Supreme Court nominee Brett Kavanaugh signed on to decisions that deprived Guántanamo detainees of the ability to challenge their detentions. In 2008, the Supreme Court recognized, in Boumediene v. Bush, a constitutional right for Guantánamo detainees to get federal courts to review the legality of their imprisonment. The decision was a bitter 5-4 split, with Justice Anthony Kennedy writing the majority opinion. But subsequent lower court decisions eviscerated Boumediene’s holding, leaving detainees, according to their attorneys, “caught in a trap from which they cannot escape.” In the New York Times, Linda Greenhouse wonders if Kennedy’s words rung “in Judge Kavanaugh’s ears as he signed on to opinions that left the promise of the Boumediene decision an empty one? And if not, why not?” [Linda Greenhouse / New York Times]

St. Louis prosecutor won’t work with certain cops anymore: “St. Louis Circuit Attorney Kim Gardner will no longer accept criminal cases from 28 city police officers and is reviewing any open cases they handled for ‘viability,’” according to the St. Louis Post-Dispatch. In a written statement, Gardner said, “A police officer’s word, and the complete veracity of that word, is fundamentally necessary to doing the job. Therefore, any break in trust must be approached with deep concern.” The listed officers comprise about 5 percent of front-line officers, and the business manager for the St. Louis Police Officers’ Association estimates that group is linked to “dozens if not hundreds of cases.”  According to the Post-Dispatch, “Gardner’s predecessor, Jennifer Joyce, refused to take cases from a handful of officers at a time in the past when their credibility had been questioned.” [Christine Byers and Joel Currier / St. Louis Post-Dispatch] See also our 12/11/17 edition on prosecutors who refuse to call unreliable cops as witnesses.

South Carolina city profits by ticketing people who use profane language: A Freedom of Information Act request by the Sun News found that the city of Myrtle Beach brought in $22,161 last year from issuing 289 tickets for using profane language. Those who are found guilty of the misdemeanor offense could be taken to jail or issued a citation. A lieutenant with the Myrtle Beach Police Department said those who violate the ordinance intend to “provoke a violent reaction from another person.” The fine money goes toward the city’s general fund, which funds various departments, including law enforcement. [Hannah Strong / Sun News] The assistant police chief’s wife responded to this reporting by calling the reporters “pieces of crap.”

The danger of risk assessments in California’s new bail law: California’s new bail system eliminates cash bail, which is a step in the right direction, but it could “create a system that is worse than what California had, in the heartbreaking name of bail reform,” writes Robin Steinberg in USA Today. It replaces cash bail with “expanded discretion for judges and a system of ‘risk assessments,’ which assign a score to people to determine who is eligible for release before trial and who should be held, not on bail, but without any hope of release at all.” Risk assessments, she argues, “turn questions of due process, veracity of evidence, and law, into matters of statistical probability.” Instead of scrutinizing the strength of the evidence in the case, “these computer models use algorithms to assess, among other things, how someone’s age, employment, drug use and criminal history will influence whether he might flee or commit a crime before trial.” This does away with the presumption of innocence, and has led to racially disparate outcomes. [Robin Steinberg / USA Today]

Thanks for reading. Have a great weekend.

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