Dangerous Legislation

When Democratic District Attorney Thomas Quinn penned an editorial recently in the Boston Globe supporting “get tough” bail revocation, it was part of a coordinated effort with Republican Governor Charles Baker to modify the Commonwealth’s Section 58A “Dangerousness” statutes. On September 10, 2018 the governor introduced legislation to keep people not yet convicted of any crime behind bars for up to a year without trial if deemed “dangerous” by police or District Attorneys. Democratic state senator Mark Montigny, who previously worked with former DA Sam Sutter to increase the length of time people could be held without bail to to half a year, then endorsed the legislation.

Baker’s legislation follows several high-profile cases of people out on bail committing serious crimes. In one case, a Weymouth police officer was allegedly killed by a man with a history of run-ins with local police who was out on $500 bail for a pending drug charge. In another case, a Fall River man who was charged in 2015 but never convicted of armed robbery reportedly killed two people, including a veteran and new father, after losing control of his vehicle in a high-speed police chase. The press has been generous with photo-ops of DAs, the governor, and police captains all calling for “Blue Lives Matter” policies. The Sun-Chronicle showed its bias running with “Bristol County DA pleads for bail reform to keep criminals off streets” while NECN cast the legislation as an effort to “Keep Dangerous Criminals Behind Bars.” Forgotten is the fact that you’re only a criminal if you’ve actually been convicted of a crime.

Last Summer the Massachusetts legislature passed an omnibus criminal law reform bill which was signed by the governor and includes bail reform. As Senator Will Brownsberger explained, the reform bill codified the State Judicial Court’s Brangan decision, which ruled that “in setting the amount of bail, whether under G.L. c.276, §57 or §58, a judge must consider a defendant’s financial resources, but is not required to set bail in an amount the defendant can afford if other relevant considerations weigh more heavily than the defendant’s ability to provide the necessary security for his appearance at trial.” The SCJ ruling balanced public safety with concern for America’s habit of criminalizing poverty.

Habitually hostile to civil liberties, Massachusetts district attorneys have destroyed lives, in many cases defending tainted convictions with tainted evidence, and nine out of eleven Massachusetts DAs staunchly opposed the recent criminal justice reform legislation. Nationwide, district attorneys have discovered that running on a “law and order” platform — going after the weakest and most vulnerable in society by labeling them “superpredators” — is always a winning election strategy. So it’s no surprise that both Republican and Democratic DA’s are joining in an assault on Brangan.

Jahmal Brangan, for whom the ruling is named, had been sitting in a Massachusetts jail for three and a half years simply because he couldn’t meet bail. After Brangan’s case was finally heard, now-retired Supreme Judicial Court Judge Geraldine S. Hines wrote, “A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair.”Hines also added: “A $250 cash bail will have little impact on the well-to-do, for whom it is less than the cost of a night’s stay in a downtown Boston hotel, but it will probably result in detention for a homeless person whose entire earthly belongings can be carried in a cart.”

There is an old truism: “a single death is a tragedy; a million deaths is a statistic.” Indeed, Brangan’s case was just one of almost a million nationwide. On any given day in 2015 roughly 700,000 people were locked up in local jails. The ACLU notes that the bail system disproportionately affects poorer Americans and people of color. Lost in the hysteria over isolated tragedies involving policemen and veterans, the victimization of poor and brown and black people merits barely a statistical footnote.

If you don’t think there’s a racial double-standard in setting bail and letting people participate effectively in their own defense, consider the case of Paul Manafort. When he was first charged with the mountain of offenses Robert Mueller threw at him, Manafort was able to post $10 million bond, allowing him to live, as the Intercept described it, “with a monitoring device around his ankle, in various luxury residences he owns in northern Virginia; Palm Beach, Florida; and the Hamptons, a tony New York beach area.” Even after Manafort’s flight risk became troubling and he was sent to jail, it was nothing like Jahmal Brangan’s experience. New York Magazine reported: “Manafort has everything he needs to prepare for the trial, including his own phone and computer. He is allowed to write emails and make an unlimited number of 15-minute calls to his lawyers. He’s even got his own ‘private, self-contained living unit, which is larger than other inmates’ units,’ the filing says. The unit includes a work space and a private shower. Manafort doesn’t even have to wear a prison jumpsuit.”

District Attorney Quinn, doing the governor’s heavy lifting by misrepresenting the Brangan decision, wrote that “the decision emphasized that judges must consider a defendant’s financial resources when setting cash bail and reiterated that dangerousness was not a reason for setting high cash bail.” Quinn’s (or was it Baker’s) solution is “to hold dangerous criminals without bail after a hearing, REGARDLESS OF THEIR FINANCIAL MEANS. Whether rich or poor, defendants should be held without bail if they are determined to be a danger to the community. The cash bail system can be reserved for defendants who are not dangerous, but still pose a default risk based on their criminal history.”

Denying bail and locking people up for a year completely violates “the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Commonwealth v. Healy, 15 Mass. App. Ct. 134, 136-137 (1983) citing Coffin v. United States, 156 U.S. 432, 453 (1895); In re Winship, 397 U.S. 358, 363 (1970); Estelle v. Williams, 425 U.S. 501, 503 (1976); Commonwealth v. Drayton, 386 Mass. 39, 46 (1982).

In 1996, when the Supreme Judicial Court considered whether 58A was constitutional, and whether the government could constitutionally lock someone up without access to bail before they have been found guilty at a trial, one of the prime reasons that the Court allowed this practice was the time limits on 58A, and “that detention under § 58A is temporary and provisional.” Mendonza v. Com., 423 Mass. 771, 790 (1996).

Now DA Quinn wants to remove that protection. His goal appears to be to simply lock up people without having to prove them guilty at trial.

Quinn admits that prosecutors’ “traditional approach to bail on serious cases was to ask the court to set a high cash bail that most defendants could not make.” In other words, “the imposition of very high bail, which cannot be explained simply by the need to assure the accused’s presence at trial and his noninterference with the pretrial process,” was used by prosecutors to lock up poor people accused of serious crimes. Mendonza v. Com., 423 Mass. 771, 781 (1996). Rather than following the law and requesting bail to ensure the defendant’s appearance in court, prosecutors asked for bail to keep people locked up. Now that they can no longer perpetrate that fraud, they need another mechanism to accomplish the same goal.

Replacing high bails with pretrial detention per 58A is just a more modern method of locking up people without ever having to prove them guilty at trial.

Prosecutors know that convincing a jury of a person’s guilt beyond a reasonable doubt is much more difficult than convincing a judge that the person is “dangerous” by clear and convincing evidence. So if they can convince a judge to lock someone up as a “danger,” they can incarcerate people without having to go before a jury.

Prosecutors also know that when people are locked up they are more likely to plead guilty. A recent study in American Economic Review found that people who are locked up are 24.5 more likely to plead guilty. See The Effects of Pre Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges by Will Dobbie, Jacob Goldin, and Crystal Yang. American Economic Review 2018, 108(2): 201–240 (https://doi.org/10.1257/aer.20161503).

Moreover, Quinn’s call to lock up “dangerous” people indefinitely is especially appalling in Bristol County, where his political ally, Sheriff Hodgson, runs two brutal jails where people are denied medical care, subjected to solitary confinement more than any other county jails in Massachusetts, and which account for more than 25 percent of county jail suicides in Massachusetts — despite only having 13 percent of county inmates. This combination of prosecutorial zeal and carceral sadism leads to a high rate of people desperate — virtually compelled — to accept unfavorable plea deals.

Quinn also seems to be unperturbed that the lack of a speedy trial combined with the presumption of guilt until trial results in unconstitutional jail sentences for those never convicted of a crime. Quinn writes, “the time frame must be increased to one year in both the district and superior courts. Yet any rational attorney would agree that cases in superior court, where the most dangerous defendants are prosecuted, cannot be tried within six months. Unless this unrealistic time limit is expanded beyond the current 180 days in superior court and 120 days in district court, we will continue to see dangerous defendants released back into our communities.”

Several of Quinn’s claims can only be made if he is truly ignorant of what happens in Massachusetts courts or cynically misrepresents judicial reality. Time limits of 120 and 180 days for pretrial detention under dangerousness statutes are illusory. Those time limits are extended based on events such as the defendant filing pretrial motions. Any rational attorney would agree that motions to dismiss or suppress must be litigated in the types of cases where pretrial detention is sought — firearms cases, drug trafficking, and sexual assault. Yet the time that elapses between the filing of those motions and their resolution extends the 120/180 limit. If that takes 60 days (good luck getting such quick turnaround), the defendant is held for an additional 60 days.

And the right of the Commonwealth to seek pretrial detention renews after indictment. If a prosecutor seeks detention in District Court and the person is held, that person may wait 30-90 days to be indicted and arraigned in Superior Court. Once there, the prosecutor may seek a new order of pretrial detention. If granted, the 180 limit starts all over again. Virtually every public defender in Massachusetts knows that imprisonment without trial under dangerousness statutes is considerably worse than Quinn describes.

Hearings required before someone can be detained before trial provide practically no due process protections. Hearsay is almost always permitted, which means that a defendant is deprived of their right to question witnesses. Evidence is often admitted without determining authenticity. Offenses that a defendant has never been convicted of, such as dismissals, are used against them. These are the proceedings that Quinn wants to use to hold defendants indefinitely.

At any given time between 60 to 70% of all prisoners are unconvicted and in pretrial detention. In the February 2018 issue of the American Economic Review cited above, Will Dobbie, Jacob Goldin, and Crystal S. Yang demonstrated that “pretrial detention significantly increases the probability of conviction, primarily through an increase in guilty pleas. Pretrial detention has no net effect on future crime, but decreases formal sector employment and the receipt of employment- and tax-related government benefits. These results are consistent with (i) pretrial detention weakening defendants’ bargaining positions during plea negotiations and (ii) a criminal conviction lowering defendants’ prospects in the formal labor market.”

In other words, pretrial detention is not just unfair and unjust — it’s extremely costly to society.

The same research also shows that reducing pretrial detention actually reduces crime. “Pretrial release may decrease future crime following case disposition through two main channels. First, pretrial release may decrease crime if pretrial detention is criminogenic because of harsh prison conditions and negative peer effects. Second, pretrial release can reduce future crime through an increased likelihood of employment, which subsequently discourages further criminal activity.”

The study estimated the economic cost of needless incarceration to be between $50,000 and $100,000 per detainee: “While a comprehensive cost-benefit analysis is beyond the scope of this paper, we consider a partial back-of-the-envelope calculation that takes into account the administrative costs of jail, the costs of apprehending individuals who fail to appear, the costs of future criminality, and the economic impact on defendants. […] Based on these tentative calculations, we estimate that the total net benefit of pretrial release for the marginal defendant is anywhere between $55,143 and $99,124. Intuitively, pretrial release on the margin increases social welfare because of the significant long-term costs associated with having a criminal conviction, the criminogenic effect of detention which offsets the incapacitation benefit, and the relatively low costs associated with apprehending defendants who miss court appearances.”

* * *

Tom Quinn bears considerable responsibility for the miserable overcrowding in the county jails he has filled, whose inmates are subjected to abusive conditions by the sheriff. Quinn was appointed by the governor after his predecessor’s resignation and then ran unopposed in primary and general elections in 2016. Once again Quinn is running unopposed in 2018 and is already promoting a Republican Governor’s bill to claw back gains made in reforming abuses in our “Criminal Justice” system. But Quinn is typical of many DA’s, and the public should really start paying attention to not only what their DA’s do in office, but to the dangerous legislation they support.

Queen of Chaos

Diana Johnstone’s 2016 book Queen of Chaos: The Misadventures of Hillary Clinton is not an election year hit piece like Dinesh D’Souza’s “Hillary’s America.” It is not a book about Hillary’s character flaws or her political flip-flopping. It is a book about foreign policy. More importantly, it is a book that deals with Clinton’s metamorphosis into a war hawk within an already hawkish Democratic Party, and the Democratic Party’s embrace of military aggression within the wider arc of the Cold War and Realpolitik. In 2018, as Russiagate consumes the minds of Centrist Democrats nostalgic for John McCain’s brand of militarism and American Exceptionalism, it’s an important book to revisit.

Johnstone begins with the U.S.-approved, if not engineered, coup which deposed Honduran President Manuel Zalaya. We immediately get a sense of how Hillary Clinton operates, her back-channel deals with old Cold War warriors who supported the Contras, friends in the Honduran military trained at the School of the Americas, and her stonewalling on returning Zalaya to power, even as half of Central and Latin America refused to recognize the eventual “winners” of the putsch.

Johnstone takes the reader through the beginnings of neoconservatism, originating in NSC-68, a 1968 Cold War document that still influences the foreign policy of Republicans and Democrats. She spends some time on the Israeli-American lobbyists who have hijacked American foreign policy and focused it on destroying the Middle East in order to “save” Israel — the only nation in the region to actually possess nuclear weapons. Johnstone goes on to examine the history of American foreign policy, particularly as driven by an interesting rogue’s gallery of female war hawks: Madeline Albright, Hillary Clinton, Susan Rice, Victoria Nuland, and Samantha Power, all Democrats.

Describing Clinton’s disconnect from feminism, Johnstone writes at length about the strange cases of PussyRiot and Femen, whose antics were used to full advantage by Clinton and the American media to attack Vladimir Putin and present their actions as “exercises in democracy” while their inevitable arrests were presented as an assault on civil liberties. Though we recoil from the Russian expression for disorderly conduct — “hooliganism” — we have no such compunctions about pepper-spraying and handcuffing peaceful demonstrators here at home. Johnstone also notes the right-wing Ukrainian connections to both groups as well as the co-optation of Amnesty International in serving the State Department.

Two chapters of Johnstone’s book deal with how NATO was expanded in violation of agreements with the former Soviet Union, and on the war that Bill Clinton waged in Yugoslavia. The war was sold as a “humanitarian intervention” to prevent genocide, which set the stage for future expansions of NATO and for more “humanitarian” wars. This particular war, as you may recall, resulted in the dissolution of Yugoslavia into pieces aligned with the West and a Slavic chunk aligned with Russia. Johnstone describes the process by which the West demonized Serbia’s leaders, applied sanctions, supported local proxies, sabotaged international diplomacy, cynically used international courts (which the US refuses to be bound by itself) to prosecute parties it didn’t like, manipulated the media, and bombed the hell out of its enemies. Bill Clinton’s Secretary of State, Madeline Albright, rejected diplomacy while telling reporters, “We intentionally set the bar too high for the Serbs to comply. They need some bombing, and that’s what they are going to get.” This is the same Albright who thought killing half a million Iraqi children through sanctions on medicines was “worth it” to get Iraq to rid itself of imaginary WMD’s.

Then we fast forward into Hillary Clinton’s tenure as Secretary of State, with her own war in Libya. Though her Republican adversaries shamefully exploited the loss of four lives in Benghazi, Clinton herself made a joke about the sodomization and murder of its leader and the transformation of an entire country into a failed state. Clinton famously mocked Obama’s dictum: “don’t do stupid shit,” claiming the United States needed a more sophisticated organizing principle. But “stupid shit” is precisely what Clinton did. She wrecked Libya.

In a long — and today a particularly relevant — chapter entitled “Not Understanding Russia” Johnstone makes the case that Clinton was armed only with an ancient Cold War mindset. Not that much has changed since NSC-68. Russia is still Reagan’s Evil Empire, and Putin is Stalin. “Soviet aggression” has been replaced with “Russian aggression” and NATO must be expanded to envelop Russia. Meanwhile, Poland and the Ukraine have developed strong fascist tendencies, which the United States either ignores or encourages (think Manafort), and Russia’s seizure of Crimea (which had been a gift to Ukraine in the first place) is portrayed in the press like Hitler’s Drang nach Osten. Where Bush expressed an amusing appreciation for Putin’s “soul” Clinton took a harsher view: “he was a KGB agent, by definition he doesn’t have a soul.” Under Secretary Clinton, the United States spent millions on Kremlinologists who, at one point, were trying to analyze Putin’s cowboy gait to see if he had Asperger’s Syndrome.

In June of 2016, the United States led the rest of NATO in war games in Poland, now governed by a far-right administration. In “Operation Anakonda 2016” 31,000 troops from 24 countries practiced for a Soviet and Warsaw Pact invasion. The commander of U.S. Army Europe, Gen. Ben Hodges, explained what the games were all about: “History shows that Russians only respect strength,” he told NPR.

In 1997 former Carter administration advisor Zbigniew Brzezinski (and midwife to Al Qaeda) joined Henry Kissinger as one more anti-Russian ideologue dispensing not only anti-Soviet “tough love” but developing a strategy for American domination and hardening of its superpower status in his book “The Grand Chessboard: American Primacy and its Geostratic Imperatives.” Brzezinski, whose son Ian was involved in the Ukrainian “Orange revolution,” has a low opinion of democracy, of the intelligence of citizens, of privacy, and of Europe or Asia or the Middle East. It is all a vast field to be plowed by Americans. Only after remaking the new world in the American image can there be peace. “But in the meantime it is imperative that no Eurasian challenger emerges, capable of dominating Eurasia and thus also of challenging America.” Russia is therefore as much an enemy as Iran or ISIS. A reviewer in “Foreign Affairs,” David C. Hendrickson, warned in 1997 that the anti-Russian prescriptions in Brzezinski’s book were so severe that even a democratic Russia would resist them and there would be unpredictable blow-back.

The United States was looking for ways to mire the Soviets in their own Viet Nam. Afghanistan was the stroke of evil genius emanating from Zbigniew Brzezinski’s twisted mind. In the last days of the Carter Administration Brzezinski recognized that Central Asia was the “soft underbelly” of the Russian bear, a source of conflict that, if exploited, could destabilize Moscow and mire it in war. Brzezinski was no Israel hawk like the neoconservatives. His goal was not to merge US and Israeli interests but to weaken the Soviets. But they shared many goals: a unipolar world, massive increases in the U.S. military, nuclear hegemony, regime change, punishing enemies, rewarding friends.

By rewarding our Islamist friends who opposed the Soviet Union in the 80’s and 90’s, the United States actually created terrorists like bin Laden, who at one point was on both U.S. and Saudi payrolls. The antagonism between the United States and Russia became so great that when Russia tried to warn the U.S. of the elder Tsarnaev brother its help was ignored. Putin brokered the surrender of Syria’s last remaining chemical weapons, but it was an unappreciated gesture because it delayed a U.S. attack on Syria. And when Putin took to the editorial pages of the New York Times to explain why the West must exercise caution in Syria, that Assad was also fighting terrorists, the United States paid him back by threatening the Russian-Ukrainian trade pact and building up NATO even more. The U.S. feigned shock when, faced with uncertain southern naval access, Russia took back the gift Khrushchev had given to the Ukraine in 1954 — Crimea, a peninsula the size of Maryland.

Johnstone concludes her book with “The War Party” — amoral neoliberals neither strictly Republicans nor strictly Democrat, but technocrats with political ambitions and wealthy friends from America’s many defense industries. From philanthropists who give money to Islamophobia, to think tanks, PAC donors, owners of the “free” press, opinion-shapers, oligarchs and despots. How is it, Johnstone asks, that Clinton and her ilk can curry favor of the Saudi family, Egyptian military dictators, Wall Street, Nigerian dictators, the Israeli occupation, and Ukrainian fascists? And what about all those wars? It’s bi-partisan. It’s just business.

Johnstone suggests that, for most voters, wars are nothing we need worry our pretty little heads over. We leave wars to the real professionals — contractors, mercenaries — and we pay for it by simply adding to our national debt. Thanks to drones there are now very few American casualties, so why should we worry? If children die in a drone strikes in Yemen, Somalia, Afghanistan, Syria, or Iraq, who is to say their terrorist parents weren’t responsible for putting them in harm’s way? And if the war hawks do get caught with blood on their hands, we accept at face value the lie that this is simply the cost of keeping us safe.

Hillary Clinton may now be a footnote writing memoirs and cashing checks from speaking fees, but the foreign policy she pursued and the neoliberalism she stands for still poisons the Democratic Party.