Monday, July 10, 2017


Photo of the Manhattan skyline, September 2011.

[For Part I, click here]

"Michele, that’s absolutely insane!" a man named Herb Sturz boomed across a silver tray of pre-made sandwiches in a Midtown conference room in 2011.

It was a clear, sunny day in May, and I was a senior program associate at the Vera Institute of Justice. I was in a room full of some very big fish, the most important people I'd ever sat face-to-face with in my career. 
We'd come to George Soros's Open Society Institute for a luncheon to explore preliminary funding for a demo of the program model Judge Redd and I piloted in Roxbury. The plan was to roll it out in Manhattan or another borough and conduct a rigorous random sample comparison to confirm whether it worked as well as the anecdotal evidence from Boston suggested. 

Present were Michele Sviridoff, then-Mayor Bloomberg’s justice czar, Michael Jacobson, then-director of Vera and former city corrections commissioner; and, Herb Sturz, former deputy mayor and one of Soros’s key justice policy advisors.

Up to that point, Michele had taken a keen interest in the program model and everything was going great, until, right as we were about to pass the ham sandwiches, Herb veered off course and confronted her on Stop and Frisk.

“Herb, I’m sorry, I don’t have anything to tell you. The mayor’s position-”

“But Michele-” he pressed again, interrupting her for the third or fourth time, not letting her get away with the stock party line she kept repeating.

Though I fully agreed with Herb, as did all of us present, he’d have had to pry my mouth open with a crowbar to get me to jump in and join him. If Michele bought our pitch and a major city like New York began using court fees and fines as an incentive to promote reentry, Judge Redd and I would be hot new players on the criminology scene, invited to lecture at big universities, do high-profile consulting, and the like. More importantly, if New York adopted the model and other cities followed suit, it would prove that my faith in the system, or at least what was left of it after Boston, was grounded in reality, that the system was interested in justice more than revenue, that it was worthwhile to stay at Vera and push for these reforms.

“Herb,” she cut him off, “If you say one more word I’m leaving-”

I grimaced and fired a look at him, eyes imploring him to back off, but he was whip-smart, saw the situation in a glance. In hindsight, though, I wish he’d kept going, that he hadn’t held back on account of our program. Its fate in Manhattan—and everywhere in America—had been sealed long before we sat down in the conference room at OSI that day. The New York State Assembly had already passed a criminal procedure law prohibiting judges from waiving court fees and fines under any circumstances. Vera tried to pitch the idea to several other jurisdictions afterward, but in the end, not a single one was willing to risk losing their fees and fines revenue. To this day, not a single jurisdiction I know of has embraced the model.

Judge Redd and I had unwittingly set a trap for the system, giving it the opportunity to choose rehabilitation over revenue, and it had revealed its true priority.

Word salad on the facade of the New York State Supreme Court building in Manhattan.

Until then, for most of my life I'd been under the impression that solutions were wanted. I thought the goal of the system was to save lives, break the cycle, work ourselves out of jobs. I took the promises carved into the granite façades of the buildings I worked in as a lawyer at their word, devoted my career to fulfilling them without knowing that in so many cases the words were there for showthey in no way resembled what actually happened inside. 

Around the same time we shut down the planning process in New York City, the New York Unified Court System began sidestepping the bail reforms won by Vera in the '70s and punishing defendants for having no cash again. The nation’s leading criminal justice figures—Bill Bratton, Ray Kelly, Mike Bloomberg, Rudy Giuliani, and others—were claiming there were no known solutions to gun violence, which, from my time in Boston, I knew was not true, and they were telling the public that, as a result, it was necessary to violate the rights of tens of millions of Americans to prevent it.

A modern-day civil rights pogrom was based on an outright lie.

Similar lies and abuses leached inland from the coasts: Prosecutors in Oklahoma caught living rent-free in an apartment they’d seized during a drug raid; police in Michigan caught seizing cars parked at an art museum; officers in Missouri caught using racially targeted traffic stops to close revenue shortfalls, and on it went.

Meanwhile, America’s chief justice oversight agency, the Department of Justice, was averaging 40 misconduct prosecutions annually, or, roughly, 5% of cases referred to it for prosecution. This meant that in 95% of cases the country’s 1,000,000-plus sworn law enforcement officers were being taught there were virtually no consequences for dancing a country jig all over the rule of law.

In 2001, in Los Angeles, the police department signed a consent decree giving the federal government power to oversee reform in lieu of litigating a messy, expensive lawsuit that would reveal decades of misconduct. After it was signed, and the Department of Justice lawyers returned to DC, the rank and file went right back to business as usual, Tasing a man’s testicle off for littering, punching a special needs woman on a bus, shredding inculpatory internal affairs documents that outlined specific instances of misconduct. In Albuquerque police shot 38 civilians in five years, 19 fatally. Not a single officer was indicted. In Chicago 662 police officers racked up 10 or more civil rights complaints against them, each. One shot an unarmed man in the street, lied about it, and the city covered up the video until after the mayoral election. In New York, where officers were promoted and commended for violating the rights of millions of New Yorkers via illegal Stop and Frisk practices—and in many cases, punished if they refused—officers killed 179 people in 15 years. Three cases led to an indictment. Only one resulted in conviction: probation. Officers in every other case were not charged, officially cleared of wrongdoing, or acquitted.

“It’s nice to be good, but it’s better to be nice.”

These words were written on a paperweight on the desk of Middlesex Superior Court Justice Paul Chernoff, who I clerked for as a 2L in the summer of 2002. Widely regarded as one of the county’s most fair and impartial trial judges by attorneys who argued before him, I often sat with him in chambers, he busily typing away on some ruling or another, me scouring for cases he hadn’t found yet, coming up empty. Occasionally he’d stop and share the secrets of effective trial advocacy with me, impress lawyerly wisdom upon an aspiring rookie apprentice, but the gist of everything I would learn that summer was already sitting in front of me, on the paperweight. No matter what happens, no matter how badly you’re losing to an adversary in court, keep your cool at all times and play nice. Treat everyone you encounter in the halls of justice kindly, fairly, and with the utmost level of respect, no exceptions. The dignity of the legal profession demands it.

Over the years I’d dutifully employed this maxim. I’d gone down the list of systems our society had appointed to deliver justice, deferentially trying each one out and giving it the benefit of the doubt: I put my head down and toiled away in courtrooms, judges’ chambers, DAs’ and public defenders’ offices, state capitols, US Capitol—you name the building I tried the door in good faith. But each time there was no answer, justice never poked her head out and said "hey buddy, all good in here!" I’d played by the rules, stood where I was told, simpered and bowed and handshaked my way down the line, and it had gotten me nowhere—less than nowhere. The sad truth was that the financial and political interests at work were way too powerful, tempting, and entrenched for the diplomatic let's just keep asking them nicely shtick to work.

In reality, the approach rendered us hamsters on a giant wheel. We were allowed to squeak out a reform pellet or two every so often, include it in our fundraising brochures to make it look like we were getting somewhere, but as soon as we stopped to take a breath and move on to the next abuse, the system had already gone back to business as before. What happened in the conference room that day at OSI—when Herb backed off on Stop and Frisk so Michele wouldn't walk out with the city's polished silver gravy boat—vividly demarcated the boundaries of how far we were allowed to go in defense of justice and rule of law. If we wanted to keep our position on the hamster wheel, keep the food pellets coming every couple of weeks, then we had no choice but to behave how the people in power wanted us to behave, to play nice, pull punches, never criticize them or call them out for lying or breaking the law
—in a word, we had to mostly let them get away with it.

Incredible, too, was that I hadn't seen anything yet. Vera was about to send me to Louisiana, the per capita incarceration leader of the free world, to work on a prison reform initiative sanctioned by Governor Bobby Jindal and funded by the Bureau of Justice Assistance and Pew Charitable Trusts. 

Though I had suspicions about the system's intent, what happened in Louisiana was so insane, so contrary to what I was told about my country, and the ideals I swore to uphold in her defense, that after all was said and done in the bayou I would never be able to look at America, or my chosen profession, in the same light again.

[Part III coming soon...]