Justice delayed, and justice denied

Adnan Syed’s saga in Baltimore proved how deeply fascism has grown entrenched in America, as San Francisco turned back the clock on civil liberties and civil rights

Last week, a pair of events on opposite sides of the country offered revealing lessons about our country’s continuing confusion on criminal justice and institutional corruption. They indicate that the movement to challenge police abuses and achieve a modicum of justice may be taking three steps back for every two forward.

Below, I explain recent events in Baltimore and San Francisco before offering my analysis of each the San Francisco Supervisors who voted last week to expand police surveillance. Four, in particular, especially invite accountability.

After decades of imprisonment for a murder he did not commit, Adnan Syed was finally freed from prison in Baltimore last Monday, and may be soon exonerated based on forthcoming results of a DNA test. His release is a triumph for a man and his family, but also a disturbing indication (as an exception proving the broader rule) of our system’s arbitrary and pervasive presumptions of guilt.

Especially as corporate outsourcing has hollowed out America’s manufacturing base, mass incarceration has emerged as our nation’s industrial labor model. A commitment to mass slavery-for-profit in fact strays far closer to the example of Nazi Germany than any American might care to acknowledge.

The very next day, officials across the country in San Francisco proved that they learned nothing from either Adnan’s case or the broader discourse about the abuses pervading the criminal justice system across the U.S. In response to a proposal from our shamelessly pro-police mayor, the Board of Supervisors by a 7-4 vote adopted a proposal that expanded the surveillance powers of local police, despite a previous 2019 ordinance—for which I advocated—that imposed first-of-their-kind restrictions on the secret acquisition of unconstitutional surveillance technology by local law-enforcement authorities.

An exception proves the rule

Adnan Syed was convicted in Baltimore as a teenager of murdering his ex girlfriend in 1999, even though prosecutors knew about legitimate suspects who they chose not to pursue, and suppressed evidence at trial indicating his innocence that they were constitutionally obligated to disclose. It took 23 years for a judge to demand that prosecutors finally prove their case.

Many observers focused on how Adnan’s case was extraordinary. He was the subject of a documentary podcast, sustained international media attention, the activism of a wide community of people spanning decades, and may become the beneficiary of forensic DNA evidence unavailable to most prisoners jailed for crimes they did not commit. 

While these exceptions are rare, however, the problems indicated by his false imprisonment are from it. As NPR put it, “Adnan Syed's case is unique. Withholding of potentially exculpatory evidence is not.”

Adnan’s long overdue release indicates more, however, then merely the arbitrary nature of what we in the United States idiotically describe as so-called “justice.” Beyond the disturbing specter of arbitrary punishment impacting innocent people is an industrial paradigm supported by mass incarceration.

Not only is Adnan’s exoneration an exception that proves a disturbing rule, but the corruption incentivizing that rule is even worse than the tragic harms—lost careers, years, homes, relationships, and even lives—endured by millions of people and their even wider ranging families.

For instance, Adnan’s case demonstrates the particular incentive for district attorneys to seek convictions. That narrow target unfortunately forces sharp departures from justice when, for instance, families are broken to impose jail or prison sentences on breadwinners who could be rehabilitated rather than simply incapacitated. To a public committed to carceral punishment, district attorneys are elected based on a transactional expectation of involuntarily detaining people en masse.

That is a fundamentally authoritarian—and ultimately fascist—presumption, deeply embedded in the American psyche and public consciousness. It is one that even most self-described liberals have failed to interrogate at all, and we have developed effectively no institutional response to contain.

Elections, like the one this summer that recalled the democratically elected district attorney of San Francisco, Chesa Boudin, have been effectively reduced to knee-jerk contests among jailers to see who can brag about incarcerating more of their neighbors.

Chesa’s recall, mind you, happened in a particular city that has long claimed to unite behind supposedly “progressive” values. Led by the San Francisco Chronicle (against which I am currently waging a lawsuit in federal court to challenge the reckless and malicious publication of racist election disinformation), publications across the city have fanned the flames of liberal mania, brainwashing San Franciscans into imagining that they live in Batman’s Gotham City or Daredevil’s Hell’s Kitchen.

Having lived on the South Side of Chicago, and NorthEast DC, the pattern reeks of ignorance and entitlement. Comfortable capitalists—people with investments—routinely blame property crimes on those ultimately trying to survive. When reform-minded change agents do challenge the system, as Boudin did in his capacity (and I did in mine), they become demonized by weaponized journalism, reduced to charicatures on which any number of negative projections can be cast.

While the press whips the public into a carceral frenzy facilitated by the courts, lost in the absent public conversation is any discussion of the legitimate public safety concerns hijacked by authoritarians across the political spectrum. From San Francisco’s rare Republicans, to the proudly ignorant self-described “liberal”-yet-ultimately-both-racist-and-authoritarian “white moderate” majority that dominates the Democratic Party, a disturbing tendency towards authoritarianism has taken root.

Beyond retribution (punishment), more worthy goals of criminal justice might include rehabilitation (preventing the recurrence of crime and returning perpetrators to society) or deterrence (discouraging future crime). Yet mass incarceration and presumptive guilt (both of which are strictly retrospective) actually support neither of those goals.

Some look at the tragedy of false imprisonment and mass incarceration through the lens of the individuals whose lives they destroy and their families. From their perspectives, it is certainly a horrific dynamic involving the deprivation of basic rights and outright human rights abuses.

But mass incarceration is even worse than the harms endured by its victims. Private companies profit from detaining people. Worse yet, they work alongside allies including police unions to contrive public policies that expand authoritarian policies and enable social control. The institutional corruption underlying the paradigm of mass industrial slavery is a horror that reveals what this country—despite its self-serving rhetoric—is ultimately about.

A “progressive” city turns its back on itself

From government contracts for private prisons to public policies that allow police & prosecutors the arbitrary power to railroad people into false convictions, a litany of factors combine to contrive mass slavery. They range from legislative policies—like the ones I ran for Congress to try to change at the federal level—to the practices of local executive officials.

Last Tuesday, the San Francisco Board of Supervisors voted 7-4 to accept a proposal from Mayor London Breed to expand the surveillance powers of local police, despite a 2019 ordinance passed by the Board that (at the time) represented the high water mark of the national movement to protect civil rights and civil liberties at the local level.

The ordinance we won in 2019 required police to seek civilian permission before accessing surveillance technology, and prohibited them from using biased facial recognition software at all. The prohibition on municipal facial recognition was the first of its kind in the country.

Mayor Breed, a staunch ally of the San Francisco Police Department, previously proposed a ballot measure to overturn our 2019 ordinance entirely, before then withdrawing it and then proposing a new compromise that merely waters down the Board of Supervisors’ historic previous decision. In particular, the new policy passed by the Board of Supervisors gives police real-time access to surveillance footage owned by private individuals and businesses, subject to their consent and certain (relatively meager) limits.

While the compromise is less damaging than the ballot measure would have been, it continues to undermine civilian oversight of police activities. This support for surveillance without civilian oversight—even at the local level in a supposedly “progressive” enclave despite recent political resistance—reinforces the corruption of a security industrial complex, and reveals the strength of its political tentacles.

Beyond the Mayor’s recent proposal adopted by the Board of Supervisors are other decisions by local executive officials—particular the District Attorney—that pose grave threats to justice. For instance, plea bargaining has encouraged a prosecutorial pattern and practice of overcharging defendants in order to induce them to waive their constitutional rights to trial. Boudin had made a practice of not overcharging, which his successor, Brooke Jenkins, appears poised to reverse.

When a defendant faces an untenably brutal sentence, it’s not crazy to accept the opportunity to secure a more lenient one by abandoning the often impossible effort to prove one’s innocence in the face of the various biases supporting presumptive guilt. Recall Adnan Syed’s case, and how even an obviously innocent person can be imprisoned in the U.S. for decades despite widespread outrage.

An elephant in every room

But it’s worse than simply intimidating individuals into resigning their rights, and forcing families to live without breadwinners. Entire communities suffer, as does the very principle of justice towards which our system was theoretically aimed in the first place.

Repeat that pattern over and over again, millions of times across the country, for generations, and imagine what might happen. 

It is, however, worse than even that. The 13th Amendment to the U.S. Constitution indicates why: it reports to abolish slavery, but explicitly allows it to continue as a condition of punishment upon conviction. Every person convicted of a felony, and many misdemeanors—whether through a trial or a plea bargain—stands at risk of being subjected to forced labor.

Especially as corporate outsourcing has hollowed out America’s manufacturing base, mass incarceration has emerged as our nation’s industrial labor model. A commitment to mass slavery-for-profit in fact strays far closer to the example of Nazi Germany than any American might care to acknowledge.

The accreted accumulated impact of denying Americans their Sixth Amendment rights in the service of building a slave labor force has never been adequately studied. It is certainly not adequately understood, even by advocates for prison abolition.

Casual observers of local broadcast news reinforce the rule that “if it bleeds it leads,” which, in turn, brainwash Americans to imagine crime waves based on the combination of occasional horrific incidents, constant TV crime dramas, and Hollywood action blockbusters all reinforcing an impression of insecurity.

The systemic rot runs deeper than most acknowledge.

I celebrate Adnan’s exoneration. Beyond his case, however the horror of mass slavery in America—let’s not dignify it by reducing it to “incarceration”— grows worse with every passing day.

Mass slavery is an obvious indication of authoritarianism. I hope more Americans come to recognize it before they find the opportunity to shift directions becomes unfortunately unavailable.

Welcome to America in 2022!

Accountability

Below, I’ll offer my analysis of each the San Francisco Supervisors who voted last week to expand police surveillance, making clear which four, in particular, deserve to be held accountable.