Archive for April, 2018

A New National Monument – posted 4/29/2018 and published in the Concord Monitor on 5/3/2018

April 29, 2018 4 comments

This piece appeared in the Concord Monitor under the title “New Memorial Forces an Honest Accounting of Lynchings”.

On April 26, a new national monument came into existence. In Montgomery Alabama, the National Memorial for Peace and Justice opened. The memorial commemorates the victims of lynching in the United States.

The Equal Justice Institute, also known as EJI, a non-profit legal and civil rights group led by lawyer Bryan Stevenson, has been the moving force behind the memorial. EJI created the memorial on land where a slave warehouse once stood. The memorial is located on high ground about a mile from Alabama’s state capitol building.

The memorial, set on six acres of land, includes 805 coffin-shaped boxes of oxidized steel hanging from a square canopy. Each box is inscribed with the names of lynching victims and the county in which they were murdered. The design evokes bodies hanging from trees.

EJI has studied and documented 4,384 lynchings in the United States between 1877-1950 and they say that there were thousands more that have never been chronicled. They are still gathering information about previously unknown murders. EJI did six years of research and made numerous visits to southern states to record lynching data.

Murders of African-American people included being hanged, burned alive, shot, drowned and getting beaten to death by white mobs. The deaths were mostly lynchings but other horrible deaths are also reported.

A new accompanying Legacy Museum also created by EJI is located nearby in Montgomery. The Legacy Museum describes and exhibits our slavery history from early times to our present era of mass incarceration. It must not be forgotten that slavery lasted for centuries and caused vast, untold human suffering.

For any student of American history, the opening of this memorial must be recognized as long overdue. Our national monuments tell a story but a big part of the story has been left out. The lynching memorial is a necessary corrective.

Up until now, there has been no public acknowledgement of the wrong done. The sites of lynchings have been forgotten, ignored, and covered up. At the same time, hundreds of monuments in the South celebrate the Confederacy.

The problem here goes very deep into the way American history is taught and remembered. As a high school student at a good school, I remember my American history classes. There was a large void between the Civil War and World War I. Reconstruction was mentioned and there was that strange, close election in 1876 but my history classes passed over that era. I do not think that is uncommon in the teaching of American history.

The lynching memorial forces an honest accounting. And the truth is brutal. Lynchings were not isolated events carried out in the dark of night by renegade Klansmen. They were often public community events, attended by many thousands. People dressed in their Sunday finest and whole families went to watch the spectacle. Police, doctors, lawyers, clergy, teachers and working people – all the pillars of the community – attended.

Many photographed these events and made postcards of the images. The perpetrators sometimes distributed body parts as souvenirs.

Frequently, it was not enough to hang the victim. Mobs would torture, mutilate and set the bodies of lynching victims on fire. Then the perpetrators would sometimes drag what was left of the bodies through the streets. Women were lynched as well as men. About the lynchings, Stevenson has said,

“They actually lifted up the bodies because they wanted to terrorize. They wanted the entire community to see it.”

Those responsible were never punished and local police did not intervene to stop lynch mobs from taking the law into their own hands.

The reasons why people were lynched often bordered on the absurd. Failing to address a police officer as “mister”, drinking from a white man’s well, bumping into a white girl accidentally, attempting to vote, land ownership, an uppity look, or just being in the wrong place at the wrong time could lead to getting lynched.

If a black man so much as talked to a white woman, he could be accused of rape and could end up, lynched. Racist lynchers always claimed they were protecting white women.

Stevenson describes what he calls an advanced coping strategy of silence about lynching. To quote him:

“If I asked the question, “Name one African-American lynched between 1877 and 1950, most people can’t name one person. Thousands of black people were lynched. Can’t name one. Why?”

Lynching is a buried history, an untold story. There is a legacy of indifference to these crimes. The historian Sherrilyn Ifill, an expert on lynching, wrote that Southern whites of that era would typically lose all memory of the lynchings they attended. Afterward, they would claim they saw nothing. As Ifill has written, that silence about the lynchings and who carried them out was seen as an act of loyalty to the white community.

After the Civil War, for the Black community, expectations rose. Black men now had the right to vote. However, the white power structure wanted to send a message: for anyone who challenges white supremacy, we will kill you. And they did.

The late nineteenth century migration of Black people from the South to the northern states can, in part, be explained by the racial terrorism practiced by white communities in the South. To live in these circumstances was to live in fear. The threat of becoming the next lynch mob victim was omnipresent.

Bryan Stevenson describes the lynching memorial as “an act of ending silence and committing to truth and reconciliation”. He has said that the museum and memorial were directly inspired by the Apartheid Museum in South Africa and the Holocaust Museum in Germany.

Part of the virtue of the lynching memorial is that it entirely bypasses the bitter debate about the dismantling of Confederate statues. It is an affirmative statement that adds to historical understanding. At a time of resurgence of the alt-right and white supremacists, the memorial offers a powerful counter-narrative.

Without question, Bryan Stevenson is one of the most inspiring people in American public life. I plan a road trip to Montgomery to visit the lynching memorial and I would strongly encourage others to make the journey.

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The Scapegoating of Latinos Has A Fascist Echo – posted 4/21/2018 and published in the Concord Monitor on 4/29/2018

April 21, 2018 Leave a comment

There is a political poster that maybe some readers have seen. At the top, the poster says “Early Warning Signs of Fascism”. Underneath, there is a list of 14 items. These include: disdain for human rights, powerful and continuing nationalism, corporate power protected, and rampant cronyism and corruption.

The item on the list that jumped out at me is “identification of enemies as a unifying cause”. While hatemongering against Muslims is part of the current picture and has been widely commented on, I think President Trump’s scapegoating of Latinos deserves more mention.

As a Jewish person, I have had an uneasy feeling of deja vu. What Trump is saying about Latinos is reminiscent of the kind of things Nazis said about German Jews in the early 1930’s. Trump has been saying these things since the day he announced for President.

After the escalator ride down, who can forget these immortal words:

“When Mexico sends its people, they’re not sending their best, They’re not sending you. They’re not sending you. They’re sending people who have lots of problems, and they’re bringing their problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I guess, are good people.”

Right from the start, Trump has tried to correlate crime with Latino immigrants. In the Nazi case, they tried to associate crime with Jews.

From 1923 on, even long before the Nazis came to power, demonization of Jews was integral. it wasn’t just the use of anti-Jewish stereotypes about the Rothschilds and rich Jews. The Nazi newspaper Der Sturmer ran a regular column called Letter Box which featured readers’ accounts of Jewish crimes. Letter Box editors encouraged the reporting of alleged Jewish crimes.

The Nazis publicized phony, manufactured Jewish crimes statistics, a sort of early day fake news. The effort was designed to whip up anti-semitism and build a sense of community identity against a stigmatized group. The Nazi Ministry of Justice ordered prosecutors to forward every criminal indictment against a Jew to the ministry’s press office so it could be publicized. The singling-out of Jewish crime was part of the Nazi hate-building strategy.

Trump has similarly singled out crimes committed by undocumented immigrants as a way to unite his base against a despised out-group. He has consistently said that because of “people that should’ve never been allowed to come over the border, crime is going through the roof”.

Trump has even created a government office to stir up outrage against these immigrants. The office is called Victims of Immigration Crime Engagement (VOICE). Trump himself has frequently highlighted the immigration records of violent offenders.

At the February 2017 joint session of Congress address, Trump introduced three guests he had invited whose family members had been killed by immigrants living in the United States illegally.

Never before in my lifetime has a leader of our government separated out the crimes of one group (undocumented immigrants) for special denunciation.

You would never know that there is no data that proves undocumented immigrants are a demographic group intrinsically prone to crime. The Washington Post has written that first generation immigrants are actually predisposed to lower crime rates than native-born Americans. The reason is not too hard to figure. Undocumented immigrants have stronger incentives than native-born Americans to stay out of trouble with the law.  If they want to want to stay in the U.S. and work, brushing up against the law is a kiss of death.

Trump’s stereotyping of Latino immigrants is a propaganda ploy designed to bolster the view that Americans are threatened by a foreign horde. The propaganda is a means to justify speeded-up deportations, mass raids, the mis-use of Immigration and Customs Enforcement (ICE) and the shredding of due process.

There is no shortage of troubling Administration actions to match their propaganda. Here is my list:

  • ICE deporting and wrecking the families of many immigrants with lengthy good records
  • immigration officials at the Southern border separating more than 700 children from adults since last October with more than 100 of these under the age of four
  • the Department of Justice imposing absurd numerical quotas on immigration judges that make due process a virtual impossibility
  • U.S. Custom and Border Protection officers failing to consider legitimate asylum claims, returning would-be immigrants to great danger and possible death
  • the un-American and insecurity-inducing treatment of 800,000 young people with DACA protection even though they innocently came to this country as children
  • the unjust pardon of Sheriff Joe Arpaio, a racial profiler, who a federal court found guilty of criminal contempt of a court order

It is hardly surprising that hate crimes have spiked against Latinos and Muslims since Trump’s election. That is no accident. It is the result of the racial resentment Trump has unleashed.

Rather than simply bemoaning the immigration enforcement apparatus, I think progressives should advocate that ICE be defunded and abolished. We should advocate that states refuse to cooperate with ICE. We do not need an American Gestapo. ICE has betrayed the public trust by cruelly and wantonly breaking up families.

History, including American history, shows the danger of scapegoating and the need to forcefully oppose it. If scapegoating is not actively opposed, it has the effect of emboldening potential perpetrators of hate crimes. We run the risk of creating a climate where such perpetrators feel their actions are legitimized. The working people of Latin America are not a threat to our national security. We need to vigorously counter the hateful rhetoric Trump is using to isolate and demonize our Latino communities.

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The Shameful Story Behind the New Hampshire Women’s Prison – posted 4/8/2018 and published in the Concord Monitor on 4/15/2018

April 8, 2018 3 comments

It is strange to say it is great to see a new prison but in the case of the New Hampshire Women’s Prison, this statement rings true.

The prison, set to open in the next few months, will have vocational and educational programs and access to 24/7 healthcare services on site. There will be treatment for inmates with mental health and substance abuse problems. The programs and services will be comparable to what male inmates have had.

The story of how this prison came to be has not been told. While the Monitor editorial on March 28 justly praised Alan Linder and Elliott Berry, two New Hampshire Legal Assistance lawyers who worked on the class action lawsuit on behalf of the women state prisoners, the Monitor only got it partly right.

The saga of the New Hampshire Women’s Prison actually began in 1983, 35 years ago. It was then that Bertram Astles, a private attorney, and later New Hampshire Legal Assistance filed a class action claiming that the state of New Hampshire was violating the constitutional rights of women state prisoners to equal protection of the law.

Back in the early 1980’s, because there was no women’s state prison. New Hampshire was shipping women state prisoners to other states, including states as far away as Maryland, Colorado and South Carolina. Many of the women prisoners were held in prisons in Massachusetts, especially MCI-Framingham, while some landed in county jails in New Hampshire. Back then, Framingham was no picnic – it was hard time.

The women had no control where or when they would be sent away. If they stayed in New Hampshire in a county jail, it was basically solitary confinement. The counties offered nothing, not even outside exercise.

I had a unique vantage point. As a law student at Franklin Pierce Law Center (now UNH Law), I interned at New Hampshire Legal Assistance in 1983-84 and I helped out on the women’s prison case. I travelled to Massachusetts prisons to meet with and interview the New Hampshire women and I took their affidavits where they told their stories.

Being out-of-state, the women were far from their families and their lawyers. The distance made visits harder, rarer, and more expensive. Lack of communication and isolation contributed to depression. Clients who are out of jail often complain that it is hard to reach their lawyer on the phone but for these clients it was extremely difficult. Inmates could make only collect calls and most attorney offices would not accept them. Also, there was no confidentiality over the phone, which was monitored.

Many of the women were young mothers and they grieved the separation from their children whom the rarely if ever saw. The impact of a mother’s incarceration on children was not considered by state officials. I think it is safe to assume there were very negative developmental consequences for the children, cognitively, emotionally, and socially. It is entirely predictable that under such circumstances children would suffer significant psychological harm, a tally off all radar screens.

Conditions in the out-of-state jails were often terrible as the New Hampshire women were an after-thought. The women prisoners got none of the perks that in-state male prisoners typically received. There was no access to vocational training, no prison jobs or even access to a law library.

Women at in-state county jails had their own special hell. The county jails were not set up for long-term inmates and they had no programs or services for the women. If a vacancy opened in an out-of-state prison, the women would get shipped out with no notice.

Back then, there were 22 women state prisoners. To get to be a state prisoner, you had to be serving at least a year behind bars. Probably part of the state’s neglect was the low number of women prisoners at the time. In addition to straight-up sexism, the numbers dictated that women prisoners were a low priority. Now there are approximately 130 women state prisoners.

During my internship, I also witnessed the battle over the halfway house. Unlike the men who had a halfway house next to the state prison, the women had no facility to ease their transition back into society.

The halfway house was not just a way station next to the prison. It was integral to the path for parole. The vocational and educational programs were not just filling time. Without a job and a place to live, the women brought nothing to the parole board. They needed those programs and the halfway house to show progress since it was a ticket out. Without the halfway house, women were stuck.

While now the state’s failure to have a halfway house looks like rank sex discrimination, at the time the case was no slam dunk. The morning of the preliminary injunction hearing in federal court in Concord, none of the women prisoners showed up to testify. There was a problem with the orders of transport. The attorney general’s office ranted like the case was frivolous.

Fortunately, the plaintiffs had some aces up their sleeve. Legal Assistance had an awesome trial prison expert, Edyth Flynn, who testified persuasively and exposed the state. Legal Assistance also had excellent trial counsel.

In the early days of the case, along with Alan Linder, plaintiffs’ counsel included Alice Schierberl, a Portsmouth-based Legal Assistance lawyer. Both Alan and Alice were passionate and effective advocates.

I remember driving to Portsmouth with Alan to meet Alice and to prepare for the preliminary injunction hearing. Alan had a list of about 25 items he had prepared. His meticulous and thorough preparation was an education in good lawyering. Alice went on to do a beautiful job on her direct examination of our expert, Edyth Flynn.

Who the judge was mattered. The plaintiffs were very fortunate to have Federal Court Judge Martin Loughlin hear the case. Judge Loughlin was a down-to-earth, compassionate man who had a soft spot for the down-and-out. Even without the plaintiffs themselves testifying at the preliminary injunction hearing, he ruled in their favor. Later, in the trial on the merits, he also ruled for the plaintiffs.

It was Judge Loughlin’s initial finding back in 1987 that the state violated equal protection that tipped the balance and moved the case forward. Judge Loughlin ordered the construction of a permanent, in-state prison for plaintiffs no later than July 1, 1989. Although that 1989 date was not to be, Judge Loughlin’s role was critical. His ruling created the inevitability of an in-state prison for women.

Instead of building a new prison, the state stuffed women prisoners into the former Hillsborough County House of Correction in Goffstown. It became available when Valley Street Jail in Manchester opened in 1989. The cramped and antiquated Goffstown facility was never intended for long-term use as a prison. There was almost no space available for basic vocational training or mental health treatment. Also, space was lacking for even family visitation.

During the years after 1989, report after report was issued about the inadequacies of the Goffstown facility, including from the United States Commission on Civil Rights. A 2009 report of the Interagency Coordinating Council for Women Offenders shockingly reported that only two women had received high school diplomas during the two decades the Goffstown women’s prison had been in operation.

This abysmal record forced New Hampshire Legal Assistance to file a second class action in 2012 because the state failed to live up to its obligations.

In considering the history, I blame New Hampshire state government, particularly the Legislature, for its failure to spend money on behalf of the women prisoners. The fact that women prisoners were a weak and politically unsympathetic constituency made it easier to dump on them.

The Legislature’s procrastination and refusal to fund was not just a moral failure. It reflected blatant sexism and disrespect for the law. Judge Loughlin’s order was ignored, causing untold harm to the women prisoners. No one has to answer for that and there is no accounting for the needless suffering that happened as a result.

Amazingly, we are now three decades beyond Judge Loughlin’s ruling and the question still must be asked: why did it take the state so long to do the right thing?

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