Empty Gestures And Powerful Messages

When President Obama announced that he was “banning” solitary confinement for juveniles, advocates and supporters cheered. Those familiar with the federal system chuckled and made jokes. Mine was along the order of, “and both juveniles thank him.” Why so unappreciative? Don’t we feel passionately that solitary confinement is horribly destructive, dangerous, and particularly egregious when used against kids?

The reason is that there are, as of the December 26th update to the federal prison population, a grand total of 26 inmates under the age of 18 out of a total census of 195,893 (as of January 28, 2016, as the totals are updated once a week).  Of the 26 juveniles, most are there because they’re Native American, and the feds have jurisdiction over crime on reservations.

In fact, the Federal Government has unique jurisdiction over crimes in Indian Country and the most serious crimes committed on reservations tend to be prosecuted in federal court. As a result, most federal juveniles are Native American. Typically, federal juvenile offenders have committed violent offenses and have a history of responding to interventions and preventive measures in the community unfavorably.

And even so, the grand total is 26. Maybe less of a joke than “both,” but still a joke. It’s not that there aren’t kids in the system, but in state systems, not federal, and President Obama has no say over their treatment.

Obama’s op-ed began with decrying the nightmarish treatment of innocent Kalief Browder on Rikers Island.

In 2010, a 16-year-old named Kalief Browder from the Bronx was accused of stealing a backpack. He was sent to Rikers Island to await trial, where he reportedly endured unspeakable violence at the hands of inmates and guards — and spent nearly two years in solitary confinement.

Of course, Kalief wasn’t in federal custody, but in the custody of the City of New York. As a pre-trial detainee, he was held in a city facility. Who runs that City? That would be New York’s very progressive mayor, Bill de Blasio.  And had he been convicted and sent to a state prison, who would be in charge of that? New York’s progressive governor, Andy Cuomo. The same son of Mario who rushed blindly to impose “yes means yes” on New York’s college campuses.

One might have thought the joke was played out by now, but the New York Times saw fit to offer an editorial homage to President Obama’s bold move to end solitary confinement for the 26.

President Obama sent a powerful message last week when he barred federal prisons from holding juveniles in solitary confinement and ordered the Bureau of Prisons to undertake sweeping changes in how solitary is used throughout the federal system.

In the land of rhetoric, an empty gesture becomes a powerful message when there is nothing else kind to say.  They love powerful messages at the Times, even if it means nothing.  In the article about this powerful message, it’s supposed to affect 10,000 inmates. They also love the number 10,000, which makes an appearance in nearly every article when they raise the number of people who “might” be affected. No one ever does a follow-up about how many people “were” affected.

Since there is near-universal agreement, at least among the criminal defense bar and most of academia, that solitary confinement is, as the Times notes, tantamount to torture, often applied arbitrarily, why not hop on the bandwagon, shout “hooray” at the president’s “powerful message” and spread the gospel?

Despite horror stories like this, as many as 100,000 people — including juveniles and people with mental illnesses — are held in solitary confinement and other forms of restrictive housing in American prisons, according to a new report by the Justice Department. Inmates often spend months or even years in small, cramped cells with virtually no human contact.

Note the cool journalist trick, “as many as,” to conceal the fact that neither the Times nor anyone else has a clue how many people are held in solitary confinement. But nowhere does the editorial mention that the feds are holding a grand total of 26 juveniles in custody. That the total number nationwide is huge, though, is clear, far greater than 26.

Did President Obama have one of his minions call Bill or Andy, both members of his club, and tell them to let the kids out of the hole? There is no mention of him having done so, and it seems pretty fair to infer that if he had, there would have been a big story about it. Rikers Island remains a shithole of abuse. So too are New York State’s prisons. Does the president not have Bill’s and Andy’s telephone numbers?

Ever a soapbox for a sad story, the New York Times offered a big deal editorial about Kalief Browder when it praised de Blasio’s powerful message of bail reform. They couldn’t have held Kalief in solitary if he hadn’t been detained on needless bail.

Last year, according to estimates by the city’s Department of Correction, 38,000 inmates were detained because they couldn’t pay bail. Of these, nearly 10,000 people could not afford $1,000 in bail, and 3,400 couldn’t come up with $500 or less.

See? 10,000 people. They love that number. Then there was the follow-up editorial praising the reform announced by the humbly named “Law Enforcement Leaders,” sending the same powerful message of reform.  Challenge accepted:

Will it happen? Will they do it, or just talk about it at a press conference? By noon today, defendants in court will know if this is real or just empty rhetoric. Let’s see what the front page of the Times has to say about it tomorrow, about how there has been a monumental paradigm shift in Manhattan criminal court with defendants released ROR en masse.  But I won’t hold my breath.

That was October 22, 2015. There has been no “monumental paradigm shift.” There has been no change at all. The wheels continued to grind exactly as they did before. What did change, however, is that deeply passionate folks felt great knowing that there was a powerful message sent. They sang the praises of their beloved reformers, patted them on the back for a job well done, and went out for a soy Frappuccino.

We’re up to our eyeballs in empty gestures and “powerful messages.” If the New York Times, President Obama, Bill and Andy, anybody, gave a damn, they would make a stink about the fact that talk is cheap, and all we’re fed is an endless stream of malarkey while life in the trenches, in the hole, goes on as it always has.  But it’s so much easier to send powerful messages, accept the applause and move along, except for the kids still in the hole.

9 comments on “Empty Gestures And Powerful Messages

  1. Jim Tyre

    Since there is near-universal agreement, at least among the criminal defense bar and most of academia

    Wow, Scott. After reading your blog for so long now, the one thing of which I was certain was that CDLs and academics are never on the same page. You can’t just sneak a such a paradigm-shifting phrase in there without a trigger warning or something.

  2. John Neff

    I guess the statement is a half truth. The more than 100,000 statement appears to be based on Kentucky the state with the highest percentage of administrative segregation. More misinformation to increase the glut.

  3. losingtrader

    “Last year, according to estimates by the city’s Department of Correction, 38,000 inmates were detained because they couldn’t pay bail. Of these, nearly 10,000 people could not afford $1,000 in bail, and 3,400 couldn’t come up with $500 or less.”
    So, that’s just $11.7 million for 13,400 people. I really don’t see your problem with funding a charity for this since you can just roll the money over as 100% of the bailees appears in court on time.
    They might even change the name from Rikers to Greenfield Island.

    I called Langone, but for some reason he preferred his name on a medical center, so tag, you’re it. If you can afford bespoke suits you can easily handle this .

    1. Patrick Maupin

      > 100% of the bailees appears in court on time.

      You’re one of those guys who gives 110%, aren’t you?

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