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Suave and the Supreme Court’s heartless ruling on juvenile lifers – posted 4/25/2021

April 25, 2021 7 comments

Recently I listened to the seven-part podcast, Suave. It tells the remarkable story of David Luis “Suave” Gonzalez. A Latino juvenile lifer, Suave had been on what he described as a suicide mission. Convicted of the first degree murder of a 13 year old boy, Suave had received a sentence of life without parole when he was 17.

A hellion for his first ten years in prison (he spent 8 years in solitary confinement), things dramatically changed for Suave when he persuaded prison authorities to invite the journalist Maria Hinojosa to speak at Graterford State Correctional Institution in Pennsylvania where he was incarcerated. He had heard Hinojosa on the radio and was intrigued because she was Latina. This was in 1993.

After Hinojosa spoke, he approached and asked, “I’m serving life. What can I do?” Hinojosa responded, “You could be my source. You could be the voice for the voiceless”.

That moment sparked a transformation in the life of Suave. Totally written off by the system, given an IQ of 56 and told he was retarded and would never amount to anything, Suave taught himself to read.

He paid another inmate in cigarettes to read him books Hinojosa sent him in prison. He read them over and over. Over a 16 year period, Suave obtained a GED and a B.A. degree from Villanova University.

He taught other inmates to read. As president of a Latino organization in prison, he organized a scholarship program for students who who lived in Philadelphia, Chester, and Bethlehem. The organization gave away scholarships of $500, $1,000 and $2,000. It was funded entirely by inmates from their wages which started at 19 cents an hour.

Also, Suave was a talented artist. He started painting watercolors when he was in prison. He taught other inmates how to paint watercolor. Suave contacted Mural Arts of Philadelphia and his wall murals started showing up around the city. He has produced 52 murals in the city of Philadelphia. His paintings are also on display at the Morton Contemporary Gallery.

Things in Suave’s life took a completely unexpected turn when the U.S. Supreme Court ruled in 2012 in the case of Miller v Alabama that, for juveniles, mandatory life without parole sentences violate the Eighth Amendment prohibition against cruel and unusual punishment.

Writing for the majority, Justice Kagan emphasized that judges must be able to consider the characteristics of juvenile defendants in order to issue a fair and individualized sentence. Kagan wrote that adolescence is marked by “transient rashness, proclivity for risk and inability to assess consequences”, all factors that should mitigate the punishment received by juvenile defendants.

Then in 2016, the Supreme Court decided the case of Montgomery v Louisiana and ruled that Miller had to be applied retroactively. Justice Kennedy, writing for a 6-3 majority, found that “children are constitutionally different from adults in their level of culpability”. Kennedy wrote that the severest penalty must be reserved “for the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility”.

Justice Kennedy was responding to research that showed that because of developing brains, children were less culpable for their crimes and were more likely to be rehabilitated than adult offenders. The Court’s analysis was rooted in a long-standing rule that the Eighth Amendment embodies “evolving standards of decency that mark the progress of a maturing society”.

The Miller and Montgomery cases led to a review of Suave’s sentence and his release from incarceration in 2017 after over 30 years behind bars. Since his release, Suave has continued painting. He has also been an activist against mass incarceration.

I could not help but think about Suave and other Suaves when I heard about the new U.S. Supreme Court decision in Jones v Montgomery. In a shockingly backwards decision authored by Justice Kavanaugh, the Court reinstated juvenile life without parole. In embarrassing fashion, all the Trump-appointed Supreme Court justices went along.

In her passionate dissent, Justice Sonia Sotomayor dismantled the majority opinion and showed how the Court dishonestly overruled precedent while claiming it was not doing that. To quote her, “How low this Court’s respect for stare decisis has sunk”.

Youth supposedly mattered but the new majority in the U.S. Supreme Court regressed in its Eighth Amendment jurisprudence. The Jones decision effectively closed the door of judicial review for many outstanding cases. As Justice Sotomayor wrote:

“The Eighth Amendment does not excuse children’s crimes, nor does it shield them from all punishment. It does, however, demand that most children be spared from punishments that give no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.”

In Jones, the Court ignored the plaintiff’s significant steps toward rehabilitation and maturity. At his resentencing hearing, Jones told the Court:

“I’m not the same person I was when I was 15… I’ve become a pretty decent person in life. And I’ve pretty much taken every avenue that I could possibly take in prison to rehabilitate myself…Minors do have the ability to change.”

Like so many of the juveniles serving life without parole sentences, Jones was physically and verbally abused as a child. His stepfather beat him with belts, switches and a paddle labelled the Punisher. His stepfather did not call him by his name but referred to him by cruel epithets. Jones committed his horrible crime when he did not have access to medications he was taking for his mental health issues.

The U.S. is the only nation that sentences people to life without parole for crimes committed before turning age 18. The punishment is now banned in half the states and in a handful of states no one is serving the sentence. At the start of 2020, there were 1465 juvenile lifers nationally. This represents a 38% decline since 2016.

Juvenile life without parole sentences disproportionately hit Black and brown children. 70% of all juveniles serving life without parole are people of color. Dehumanized as super-predators, these inmates pay the price for institutionalized racism. It is no accident so many children of color get such extreme sentences. They are part of the broader trend of racial disparities in sentencing with people of color getting harsher sentences.

The Jones decision is an undeniably major setback in the movement to end juvenile life without parole. Instead of an “evolving standard of decency” on the Eighth Amendment, our Supreme Court has a devolving standard rooted in cruelty and blindness to institutional racism.

Suave’s life shows the difference second chances can make.

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The problem of far right extremism is nothing new in America – posted 4/21/2021

April 21, 2021 Leave a comment

The Trump presidency and the events of January 6 made me wonder about past American experience with authoritarian threats. Did America ever have other close calls with far right wing extremism? Here I am not talking about the racist, totalitarian system that persisted in the South for almost 100 years after Reconstruction.

Although it is little remembered now, before Pearl Harbor, there was a surprisingly strong pro-Nazi movement in the United States. The story of the heroic war against the Axis powers has overshadowed what happened before Pearl Harbor.

In his book, Hitler’s American Friends, Bradley Hart reconstructs a forgotten time. In 1941, before the Japanese attack on Pearl Harbor, isolationism was a strong American political tendency. The America First Committee organized to keep America out of the coming war. It had considerable, possibly majority, support nationally.

The slogan America First did not originate with Donald Trump. It had been a favorite slogan of the Ku Klux Klan back in the 1920’s. It also had been used to support eugenicist, anti-immigration bills in that same time period. Earlier presidential candidates had also adopted the slogan.

In the 1930’s, while it attempted to present itself as patriotic, America First’s agenda ran on a parallel track with the German Nazis. The goal of German propaganda was to discredit the British and to promote confusion so that the U.S. would take no side in the war in Europe. America First opposed entry into what they called “a faraway war” on behalf of the British empire. In their propaganda, they smeared the British.

As a mass movement, America First included a variety of political types from isolationists to Gold Star mothers to anti-New Dealers to Nazi sympathizers. The movement had a strong anti-semitic undercurrent. Its most charismatic front man was the pilot, Charles Lindbergh.

Lindbergh, in speeches around the country, blamed the British, the Jews, and the Roosevelt administration for conspiring to push America into war against Germany. Even though the Nazis had invaded and taken France, Lindbergh argued that America’s geographic separation from Europe and Asia offered protection from any foreign attack.

Lindbergh minimized any risk to America should Britain fall to the Nazis. In retrospect, it is hard not to see him as a stooge of the Nazis. In 1938, Herman Goering, the head of the Luftwaffe, on behalf of Hitler, gave Lindbergh the Service Cross of the German Eagle.

While acknowledging the persecution of Jews in Germany, Lindbergh simultaneously argued that the Jews presented a unique danger to America. Indulging an anti-semitic stereotype, he complained about Jews’ ownership of the movies and media and their influence in government.

Even with Lindbergh’s anti-semitism, the America First Committee saw an outpouring of support around the country. America First was not alone on the far right. There were multiple other pro-fascist forces in the U.S. before the Japanese attack on Pearl Harbor utterly changed the equation.

The German-American Bund was possibly the most prominent. The Bund emerged in 1936. With chapters around the nation, Bund members paraded with American flags and swastika flags. Under their leader, Fritz Kuhn, the Bund required members to state they were “of Aryan descent, free from Jewish or Colored Blood”.

The Bund’s high point was probably 1939 when it filled Madison Square Garden for a “Pro-America Rally” featuring a large picture of George Washington surrounded by swastikas.

Along with the Bund was the Silver Legion with its founder William Dudley Pelley. The Silver Legion, also known as the Silver Shirts, was a membership organization founded in 1933 open to all except Jews and African Americans. The Silver Shirts advocated the establishment of a fascist government in America that would oversee a “Christian Commonwealth”.

Pelley said he would save America just as Mussolini saved Italy and Hitler saved Germany. In his propaganda, Pelley called for a Secretary of Jewry for his future government. That Secretary would be responsible for dealing with the Jewish population by restricting them to a single city per state so that their activities could be monitored.

Then there was the religious right of the time, especially Father Charles Coughlin. Coughlin was a Catholic priest who developed a massive radio following estimated at a monthly audience of nearly 29 million listeners. The German newspaper Der Sturmer praised Coughlin as one of the only Americans “to speak his conviction that national Socialism is right”.

Coughlin claimed that Nazism was a natural response to the threat posed by communism. He typically conflated Jews with communism.

Father Coughlin was not the only religious figure to organize on the far right. Gerald L.K. Smith, a former Midwest preacher who moved to Louisiana, and Gerald Winrod, a Christian fundamentalist from Kansas, expressed admiration for Hitler. They both said that the Nazis were protecting Christian churches from Jewish and Communist threats. Winrod ran for U.S. Senate in Kansas but was defeated in the Republican primary.

The American business community also figured noticeably in support for Hitler. Much of corporate America hated Roosevelt for his New Deal policies. Some corporate leaders felt they could do business with Hitler – and they did. General Motors, Ford and Coca-Cola all pursued business with the Nazis.

Most infamously, Henry Ford and Hitler had a mutual admiration society. Ford was a vicious anti-semite. He built trucks for the German military while distributing huge numbers of the anti-semitic tract, the Protocols of the Learned Elders of Zion at home. Ford continued its operations in France after France had fallen to the Nazis. A Ford plant near Paris built aircraft engines, military trucks and other vehicles for the German military while the war continued.

The diverse pro-Nazi forces in America were never able to unify around a leader. It is easy to speculate about things that never happened but if Charles Lindbergh had run for President in 1940 he might have been a formidable opponent to FDR. That is the premise for Philip Roth’s novel The Plot Against America.

After Pearl Harbor, things changed overnight. People who had previously identified as pro-Nazi disappeared into the shadows. The FBI paid attention to Nazi agents and convicted over 100 of various offenses during the war period. Many people changed names and tried to start over. The Nazis had developed a far-reaching network of sympathizers, spies and supporters which mostly vanished into obscurity.

The U.S. government never took any action against Henry Ford and other corporate leaders who had actively collaborated with the Germans. After the war, the Nazi threat was quickly forgotten as the U.S. government moved on to fear of the Soviet Union.

January 6 should serve as a wake-up call about the threat posed by the Proud Boys, the Oath Keepers, the Boogaloo Bois and others of their ilk. That movement has surprising military and police background and training. They are the newest incarnation of our recurring far right authoritarian tradition.

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NH early Spring – posted 4/15/2021

April 16, 2021 1 comment
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Holocaust ignorance and denial open the gateway to authoritarianism – posted 4/13/2021

April 13, 2021 2 comments

April 8 was Holocaust Remembrance Day but we, as a society, seem to be doing a poor job remembering. Possibly readers saw the results of that survey that showed two-thirds of young Americans are unaware that six million Jews were murdered in the Holocaust. More than one in ten believed Jews caused the Holocaust.

The survey from the Conference on Jewish Material Claims Against Germany had other shocking findings. 12% of survey respondents did not recognize the term “holocaust”. Only 44% were familiar with Auschwitz. 36% believed two million or fewer Jews were killed in the Holocaust.

And I think this ignorance is not limited to young Americans. According to Pew Research Center data from 2020, older adults display only slightly higher levels of Holocaust knowledge.

Internationally, the news is also bad. Surveys in France, Austria and Canada also showed major gaps in awareness of historical facts and knowledge of the Holocaust.

This ignorance is not just some abstract evil. Fascism and authoritarianism thrive on destruction of historical memory. After 1945, the news of Hitler’s gas chambers and his extermination camps created a massive obstacle in the path of fascist resurrection. The horrors were so awful that no one in their right mind would go down that road and want such hideous results again.

The fascist project requires burying the past, obscuring and dimming memory. Academic holocaust deniers had very limited success as few paid attention. The passage of time and alt-right propaganda on the internet are what currently assist Holocaust denial. The decline of historical awareness about the Holocaust has meant less neo-fascist compulsion to explain away the unparalleled 1940’s atrocities. The Holocaust is more likely to be dismissed as ancient history rather than something that must be refuted.

Now 76 years later, with forgetting gaining ground on remembering, the question arises: how many people would recognize fascism in their own society if they lack knowledge of its historical legacy? Considering the spread of authoritarian regimes around the world, the question has international relevance.

Fascists and authoritarians may call themselves something else inoffensive and euphemistic. They may weaken and decimate human rights without waving swastika flags.

For countries transforming from democracy to authoritarianism, there is a process of change that occurs. Nazi Germany did not begin with the industrialization of mass death. That only came after years of dehumanization and demonization of the Jews.

In 1920, in its program, the German Nazi Party proposed revoking citizenship rights of Jews. They also proposed removal of Jews from positions in public employment and deportation of those Jews who had entered Germany after the outbreak of World War One.

Hitler unsuccessfully tried to overthrow the German government in 1923. His putsch, carried out in Munich, failed. After a trial for treason, he spent a year in jail where he began work on Mein Kampf.

The fortunes of Hitler and the Nazis dramatically changed with the coming of the Great Depression. The Weimar government failed to respond to the massive unemployment, homelessness, and starvation in Germany. Speaking to the misery, Hitler became known all over the country because of his mass rallies. Radio, then a new medium, greatly contributed to his rise. Hitler’s speeches were broadcast live to dozens of countries.

For Hitler, the Jews were Germany’s principal adversary. He falsely claimed Germany was defeated in World War One because of a secret coalition between Jews and leftists. The stab-in-the-back legend was promoted by the German military high command that wanted to shift blame away from themselves. Hitler and the Nazis carried it farther with the wilder lie that there was an international Jewish conspiracy that intended to exterminate the Aryan race.

After he became chancellor in 1933, the Nazi Party organized a boycott of Jewish stores and Jewish judges were dragged out of court. Hitler demanded the removal of all Jewish civil servants and disbarment of all Jewish lawyers. Two years later, he followed with the drafting of a law depriving Jews of citizenship and another law barring intermarriage between Jews and non-Jews.

All these steps happened a few years before Kristallnacht and years more before the implementation of the Final Solution. Each fascist step prepared the way for the next.

America now has its own authoritarianism problem. In the balance between democracy and authoritarianism, former President Trump tipped the scales toward authoritarianism. He had been shattering democratic norms for four years as he abused public power for private gain. The January 6 insurrection was the culmination of his anti-democratic efforts to overturn a fair election and install himself as dictator.

The authoritarian narrative is wrapped in delusion. Republicans were allegedly the victim of voter fraud. Trump had the election stolen from him by that fraud. Because of the Big Lie of voter fraud, we need new laws to restrict voting to protect the integrity of elections. So we need new laws to protect against something that never happened.

In this narrative, undocumented immigrants, Black Lives Matter and Antifa play the adversary role the Jews played in Germany. Hate is also stirred up against Asian-Americans and easy-to-pick-on minorities like transgender youth.

Just as happened in Germany, our authoritarians see the past as a burden that must be shed. Instead of historical honesty, we must have patriotic education with no 1619 project. Genocide against Native Americans and slavery and its legacy must be minimized and airbrushed away. Republicans prohibit the study of critical race theory without understanding what it is. They want to protect students from learning about the ways racism persists in America.

Fortunately, we do not have to presently deal with any genocidal regime like the Nazis. In saying this, I do not belittle Trump’s crimes like family separation and putting children in cages. It is not however in the league of the Nazis. Still, we have learned the fragility of our democracy.

I believe Holocaust education should be mandated in all states as a part of civics education. A number of states including New Hampshire have done that. These states require all school districts to teach their students about the Holocaust and genocide. That can only help the cause of democracy.

It remains to be seen whether Trump’s loss last year will be like the Hitler putsch, a temporary reversal on the road to authoritarianism.

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Chevron’s kill shot against Attorney Steven Donziger – posted 4/6/2021

April 6, 2021 Leave a comment

In our era, there is no bigger global villain than fossil fuel companies. In pursuit of private profit, they poison delicate ecosystems and supercharge climate change. They have done more than any other entity to ruin the planet. Our dependence on fossil fuel is the ultimate Faustian bargain.

For whatever reason, though, and it is easy to speculate why, our mass media has turned away from looking at the destruction fossil fuel companies have wrought.

One under-reported example is Chevron Corporation’s massive pollution of the Ecuadoran rain forest. The oil company, previously Texaco, dumped at least 16 billion gallons of toxic waste in an area inhabited by indigenous people and rural farmers. Between 1972 and 1992, Texaco left almost a thousand pits of toxic oil waste all over the rain forest in what had previously been a pristine environment.

The oil contamination polluted the soil and poisoned the water. Indigenous people have faced and continue to face an epidemic of cancer, birth defects, miscarriages and other oil-related illnesses. The pump-and-dump operations polluted 1,700 square miles of land. It began in the 1960’s when Texaco began drilling there. Chevron bought Texaco in 2000.

The company chose to dispose of its wastes by dumping a combination of drilling muds, “formation water” and actual crude oil into unlined pits. This was a method Texas had outlawed as far back as 1969. They also released billions of gallons of oil-laced “produced” waters straight into streams and lakes. This method was contrary to standard American procedures which requires potentially toxic compounds to be reinjected deep underground.

Texaco agreed to remediate at least part of the pollution but Ecuadorans were outraged by what they saw as a sellout by their own government.

In 1993, environmental lawyers filed suit in New York on behalf of 30,000 indigenous people in Ecuador. The oil company challenged jurisdiction for years and in 2003, proceedings got moved back to Ecuador. Then the oil company challenged jurisdiction there. They favored no place for jurisdiction. They hired hundreds of lawyers to fight the litigation, filing endless motions to delay and defeat the case.

In 2011, the environmental lawyers won the case in Ecuador and Chevron was originally ordered to pay $19 billion in damages. The decision has been affirmed by multiple appellate courts in Ecuador and Canada including the Ecuador Supreme Court, Ecuador Constitutional Court and Canada’s Supreme Court. An appellate court in Ecuador did reduce the verdict to $9.5 billion in damages. However, rather than pay the judgment, Chevron responded by suing the lawyers who had pursued the case.

One particular target of Chevron was Steven Donziger, a human rights lawyer from New York. Chevron sued Donziger for $60 billion, the largest potential personal liability in American history. Donziger was part of the team of lawyers, including Ecuadoran lawyers, who won the judgment against Chevron.

Because of Donziger’s effectiveness, Chevron decided to make Donziger’s life a living hell. They pursued a strategy of demonizing Donziger to avoid their liability. Chevron filed a series of post-judgment motions to try to hold Donziger in civil contempt based on the theory that he was not allowed to raise third-party litigation financing on behalf of his Ecuadoran clients so they could enforce their judgment outside the United States.

Since 2011, Chevron also indulged in a series of hyper-aggressive, retaliatory SLAPP suits against Donziger. SLAPP stands for strategic lawsuit against public participation. Such lawsuits are designed to intimidate and silence critics by burdening them with extraordinary costs.

Among the lawsuits, Chevron sued Donziger under a civil provision of the Racketeering Influenced and Corrupt Organization (RICO) Act. Federal Court Judge Lewis A. Kaplan, a pro-corporate jurist, who refused to look at the scientific evidence in the original case, ruled the initial verdict was the result of fraud, a holding contrary to three appellate courts. He ordered Donziger to pay millions in attorney fees to Chevron and ordered him to turn over decades of client communications.

It should be noted that Chevron’’s star witness was a disgraced former Ecuadoran judge who lost his position because of corruption. Chevron spent $2 million on moving him and his family to the United States. Chevron’s lawyers rehearsed his testimony 53 times. Subsequently the witness has admitted to lying about his interactions with Donziger.

Chevron went totally over the top when it demanded unfettered access to Donziger’s computers, cellphones and reams of privileged and confidential information. No ethical lawyer would ever comply with something like that and Donziger did not. As a result though, Judge Kaplan charged Donziger with criminal contempt of court for disputing a discovery order.

Judge Kaplan asked the U.S. Attorney for the Southern District of New York to prosecute the criminal contempt. That office declined. Judge Kaplan then took the highly unusual step of appointing a team of attorneys from Seward and Kissel, a private firm that had an ongoing attorney-client relationship with Chevron, to prosecute the criminal contempt in the name of the government.

As if this was not bad enough, things spiraled downward. Kaplan bypassed the usual random-case assignment procedure of the federal judiciary and handpicked a judge to hear the contempt case. The judge, a member of the Federalist Society, a powerful far right legal organization, refused Donziger’s request to have his trial heard by a jury of his peers.

Donziger’s contempt charge is a misdemeanor, a petty charge with a maximum sentence of six months in prison. His trial is slated to begin on May 10. Under the contempt, he has now been held under house arrest for over 600 days, while being forced to wear an ankle bracelet. The judge has deemed Donziger a flight risk.

Under the terms of his sentence, Donziger can only leave his home for specific reasons like legal meetings, medical appointments or school events for his son. He must get 48 hours advance permission from a pretrial services officer for such events and he must go to a specific address and return back by a specific time.

No lawyer convicted of contempt in New York has ever been held for more than 90 days in home confinement. Yet, on March 29, the Second Circuit Court of Appeals rejected Donziger’s motion to be released on bail while awaiting trial for contempt. They did, however, throw out Judge Kaplan’s main contempt finding.

Donziger also faces being disbarred. His law license was suspended in 2018 without a hearing based on Kaplan’s findings in the contempt case. He is now fighting to get his law license reinstated. In February a referee for the New York Bar Association, John Horan, ruled in Donziger’s favor, recommending that his law license be restored. That decision must now be reviewed by a New York state court. Horan said,

“The extent of (Donziger’s) pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, (that) while not a factor in my recommendation (it) is nonetheless background to it.”

Chevron’s strategy against Donziger has been called the kill shot. The case has not received attention. However, 55 Nobel Prize laureates recently announced their demand for freedom for Donziger as well as demanding that Chevron face justice for its Amazon pollution.

What we have here is an out-of-control corporation using its vast resources to persecute a human rights lawyer. The corporate message is both clear and chilling: cross us and you will pay, hugely.

Two retired federal judges, Nancy Gertner and Mark Bennett, took the step of publishing a critique of the still-pending criminal case against Donziger. They have called it “excessive” and “deeply troubling”. Human rights and environmental justice organizations, including Amazon Watch and Amnesty International, have written the new Attorney General Merrick Garland and have asked him to review and investigate Chevron’s mis-use of the legal system.

This story is the ultimate in vindictiveness: Chevron was whipped by human rights lawyers and they have counter-attacked to avoid paying the judgment they lost. They want to destroy the idea that indigenous people can hold an oil company accountable. When a corporation is as wealthy as Chevron, the question remains: can there ever be any corporate accountability? That question remains unanswered.

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