When Americans Are Silent Spectators

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Jeffrey Epstein’s death by suicide two weeks ago at the Metropolitan Correctional Center in Manhattan was followed, within hours, by a wave of reporting. There has been a steady chronicling, as journalists learn details, of the conditions he was held in, the lapses at the jail that left him unobserved, and the unusual attention from the attorney general who is personally overseeing four federal inquiries into what transpired.

But even as the reporting on the circumstances of Epstein’s death began to be published, people were pointing out that his death was not the product of aberrations, that the conditions that allowed it were the norm and representative of the conditions in which thousands of people had lived, and even died, at MCC, and jails across the country. Just last year, Aviva Stahl reported for Gothamist on this “gulag” in Lower Manhattan. Nothing was unusual in Epstein’s case except that his criminal case was closely covered and he was white, extraordinarily wealthy, and well-connected. As Sarah Lustbader wrote for the Daily Appeal shortly after Epstein’s death, it was ironic, and perhaps distinctly American, that the possible catalyst for reforms at MCC wasn’t compassion for the thousands of others who have been held at the jail, but perhaps instead disappointment that he was not subjected to vengeance for his alleged crimes.

The truth is, as many pointed out, MCC has been the site of cruelty and torture for years, or even longer. The question is why were what a British human rights lawyer described as “diabolical” conditions at MCC allowed to fly under the radar?

This is the question Jeanne Theoharis, a political scientist at Brooklyn College who has written extensively about the civil rights movement and racial justice, asks in an essay in The Atlantic. Theoharis considers the sudden interest in the dehumanizing conditions at MCC—she herself received queries from no fewer than 20 outlets immediately after Epstein’s death—and the contrast with the years of silence that preceded this. She described how, for years, she contacted news outlets describing the treatment of people held at the federal jail, all to no avail. But not until after Epstein’s death did she receive the flood of emails with “Urgent” in the subject.

Theoharis, in her essay, and Stahl, in a recent article for the Columbia Journalism Review, look at why, despite the harsh treatment of people at MCC—particularly those held at 10 South, many of whom are subject to the draconian “special administrative measures”—there was little appetite for publishing articles about MCC until Epstein’s death. (Epstein was in the Special Housing Unit on 9 South when he died and was not subject to special administrative measures.)

An obvious obstacle is the difficulty gathering information about federal jails, thanks to hurdles thrown up by the Bureau of Prisons. Another is the nature of special administrative measures, which allow detained people to communicate only with some immediate family members and lawyers, and then criminalize any communication on the part of those relatives and lawyers to others about what they have learned. A 2017 report described how SAMs “restrictions include gag orders on prisoners, their family members, and their attorneys, effectively shielding this extreme use of government power from public view.” Theoharis describes the prolonged solitary confinement imposed on people held at 10 South—an isolation so complete that people even shower inside their cells (in view of video cameras) and travel only a few steps to another cage for their “recreation.”

Had these conditions, in the heart of Lower Manhattan, in a city dense with media organizations, escaped the scrutiny they warrant because most of the people subject to them were Muslim and accused of terrorism? Because the assumption was that conditions so grim, more consistent with the dungeons of dictatorships, could not exist in a neighborhood so awash in wealth and within a federal system viewed as more elite, more professional, and more competent than the state courts and city jails? Because courts, and journalism outlets, largely deferred to federal prosecutors and prison officials’ pronouncements on the dangerousness of those detained? All of the above?

As both Epstein’s death and the emergency at the Metropolitan Detention Center in Brooklyn in February demonstrate, federal officials can be responsive if pushed. And of course it is not just MCC, or federal jails, that fester as a site of officially sanctioned horrors. In Mississippi, as Jerry Mitchell reported in The Guardian last week, people held in state prisons live amid bloodshed that has escaped federal civil rights investigations despite matching, or even exceeding, the violence in prisons in neighboring Alabama, where a Department of Justice inquiry produced a damning report. Nor are state facilities in New York exempt from deadly conditions, as Jean Casella and Katie Rose Quandt described in Gothamist in February.

In his essay in the 1619 Project from the New York Times, Bryan Stevenson, the civil rights lawyer and founder of the Equal Justice Initiative, describes how the grotesque violence of slavery gave birth to the grotesque violence of our system of punishment. “American slavery matured into a perverse regime that denied the humanity of black people while still criminalizing their actions,” he writes. He describes men he has represented who were imprisoned at Angola Prison in Louisiana, some for nearly 50 years, where they “worked in fields under the supervision of horse-riding, shotgun-toting guards who forced them to pick crops, including cotton.”

“Their disciplinary records show that if they refused to pick cotton—or failed to pick it fast enough—they could be punished with time in ‘the hole,’ where food was restricted and inmates were sometimes tear-gassed,” he continued. “Still, some black prisoners … considered the despair of the hole preferable to the unbearable degradation of being forced to pick cotton on a plantation at the end of the 20th century.”

The legacy of slavery, the history of the convict-leasing system conceived of to erase the gains of Reconstruction—we live with their progeny. “It’s not just that this history fostered a view of black people as presumptively criminal,” Stevenson said. “It also cultivated a tolerance for employing any level of brutality in response.”

As Jeanne Theoharis asked, why did it take Jeffrey Epstein’s death before she received emails that treated news about the conditions at MCC as “Urgent”? Was it because the people whose suffering and whose stories would have to be credited are sometimes accused of, or even guilty of, committing terrible crimes? Or because this country’s criminal legal system is predicated on horrific violence towards those branded as ‘criminal’?

Stevenson writes in his essay: “The smog created by our history of racial injustice is suffocating and toxic. We are too practiced in ignoring the victimization of any black people tagged as criminal … too many Americans are willing spectators to horrifying acts, as long as we’re assured they’re in the interest of maintaining order.”