Monday, June 29, 2015

Media Uncritical of Justifications for Shooting Escaped Convict

After nearly a month on the run after breaking out of a maximum-security prison in Upstate New York, convicted murder David Sweat was shot on Sunday by a New York State trooper and apprehended. Two days earlier fellow convicted murderer and escapee Richard Matt was shot dead by a federal agent nearby. While Governor Andrew Cuomo was quick to label Sergeant Jay Cook, who shot and captured Sweat, a "hero" - a claim that was repeated by CNN, the Daily News, Time and many other outlets - there was no serious analysis about whether Cook's use of lethal force was legally justified.

The Associated Press published "Trooper had law on his side when he shot unarmed escapee" (6/29/15), which was widely reprinted nationally and internationally. The article makes the case appear definitively open and shut.

"A state trooper had the law on his side when he shot unarmed prison escapee David Sweat, apparently in the back, as the convicted killer ran toward a forest near the Canadian border," the AP wrote.

Their source: one legal expert. Maria Haberfeld, head of the law and police science department at John Jay College of Criminal Justice, told the AP: "You cannot shoot a fleeing felon, but certainly you can shoot the one who poses a real threat. There was no reason to believe this person who had killed a police officer before was not posing a real threat."

The AP cites the 1986 Supreme Court decision Tennessee v. Garner defining the condition that deadly force may only be used if "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." The AP also notes a New York State law permits the use of deadly force against a dangerous convict escaping from a detention facility.

While the AP says that "experts" differentiated the shooting from the case of Walter Scott, who was gunned down in South Carolina after a traffic stop, only the head of the National Association of Police Organizations is quoted to make this point. He said "these prisoners ... they're not presumed to be an innocent citizen walking down the street."

The only opinions the AP mentions countering arguments for the legality of shooting Sweat are "some people online" who "questioned the decision to fire."

It wouldn't have been hard to at least find sources questioning the legal basis for shooting an unarmed man clearly not posing a immediate threat to the officer or anyone else.

Ten days earlier, Amnesty International released a report titled "Deadly Force: Police Use of Lethal Force in the United States," which found that neither U.S. Constitutional law nor a single state law meets international standards concerning the use of force by police officers.

“Amnesty International reviewed US state laws - where they exist - governing the use of lethal force by law enforcement officials and found that they all fail to comply with international law and standards. Many of them do not even meet the less stringent standard set by US constitutional law,” the report says.


So even if it were true that the shooting of David Sweat was legal according to state and/or Constitutional law, it could still be the case that it does not meet the legal justifications of international treaties to which the United States is a party.


According to Principle 9 of the United Nations Basic Principles on the use of Force and Firearms by Law Enforcement Officials: "Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life."


This is clearly a much more stringent standard than that established in the Garner case. Not only is an officer required to act in self-defense (or defense of a third person), but there must be an "imminent threat of death or serious injury" and the shooting must be "strictly unavoidable in order to protect life."


The sequence of events leading to the shooting of Sweat, according to the New York Times, was that after being asked by Sergeant Cook to approach him, "instead Mr. Sweat turned and fled across a field toward the tree line." Cook "patrolling by himself, gave chase and finally opened fire, striking Mr. Sweat twice in the torso, because he realized the fugitive was going to make it to the woods and possibly disappear."


While Sweat had been convicted of the murder of a police officer, which would have established the justification to use lethal force against him under New York law, it would be much harder to argue he presented an "imminent threat" as he was unarmed and there was no one else nearby. He had been on the lam for more than three weeks without harming anyone. If he were to have escaped to the woods without being detained, would that have constituted an imminent threat?


There was no mention in the Associated Press article of any investigation into the shooting. As Amnesty noted: "All cases of police use of lethal force must be subject to an independent, impartial and transparent investigation and if the evidence indicates that the killing was unlawful, the police officer responsible should be criminally prosecuted.”


There are enough questions surrounding the shooting of an unarmed man to warrant an investigation, regardless of whether Sweat was a convicted murderer. Instead the officer is quickly called a hero and the media follow suit in their hero worship.


Sweat is reportedly in serious condition at Albany Medical Center. The media seems willing to ignore his rights because of the horrific crimes he was convicted of. But despite his crimes, he is legally still entitled to the right to life that every person - even the most violent criminal - enjoys.

With the shooting of Sweat coming so soon after the Amnesty report, media organizations could have drawn attention to the higher standard for the use of lethal force by law enforcement officers under international law that the report documents, which quite likely were not met. They could have at least mentioned that relevant international law exists and is something American law enforcement are obligated to follow.

Sunday, June 14, 2015

Oppression of African Americans is not a Liberal Invention

Over the last few years the killing of unarmed African Americans including Michael Brown, Eric Garner, John Crawford, Tamir Rice, Walter Scott and Freddie Gray by agents of the state have generated massive protests against a political system that almost never punishes police violence. Activist groups like Black Lives Matter have emerged as voices on the front lines from Ferguson to Baltimore. Their message is simple: American society and the political system it has created do not value black lives the same as white lives. They draw powerful connections between the state-sanctioned use of force, a discriminatory criminal justice system, mass incarceration, and economic inequality for racial minorities. But their indictment of the system is predictably met with hostility by conservatives in denial that white supremacy exists, much less dominates American politics.

Right-wing authoritarians believe the real problem is liberals blowing a small number of sensationalist incidents out of proportion. They claim liberals take isolated cases of blacks being killed during police encounters and misconstrue them as discrimination, or liberals argue that unemployed or incarcerated blacks created their own fate through their personal choices.

Most conservatives cling defensively to the notion that the system is fair, and people who claim otherwise are guilty of selection bias. They see authorities as noble and worthy of respect. Any evidence to the contrary can be written off as a few cases of bad apples. 

In reality, there is overwhelming empirical evidence that white supremacy plays a dominant role in American society. Mark Twain had a point when he said, "there's three types of lies: lies, damned lies, and statistics." Taken individually, you could cherry-pick any piece of data to make a point. But when you analyze the picture holistically, the result is an unequivocal pattern.

Multiple indicators - police shootings, incarceration rates, public health indicators, wealth indeces and drug use rates - demonstrate that African Americans are disadvantaged in the United States. And not just disadvantaged narrowly. The numbers confirm what any reasonable person should be able to ascertain themselves through anecdotal evidence if they have a television and an internet connection.

Numerous studies have found that blacks are killed by police at a highly disproportionate rate relative to their percentage of the population. A Vox analysis of FBI Data from 2012 determined black people represented 31% of police shooting victims, while representing just 13% of the population as a whole. That is to say, African Americans were killed 2.5 times more frequently than they would be if police killings occurred equally across racial lines. Whites accounted for 52% of victims shot dead by police, while representing 63% of the entire population.

A ProPublica analysis found that statistics were even more stark for teenagers. Black teens were 21 times more likely to be killed than white teens from 2010-2012. The authors determined that more than 1 white teen would have to have been killed by police per week over that three-year period for both groups to have an equal likelihood.

A Guardian analysis of data accumulated for the first five months of 2015 was nearly identical to the Vox analysis. The Guardian found 29% of those killed by police were black, versus 50% who were white.

Additionally, the Guardian found that twice as many blacks as whites killed by the police were likely to be unarmed (32% to 15%). The paper quoted the executive director of human rights organization Amnesty International USA, Steven Hawkins, as calling the statistics "startling .. the disparity speaks to something that needs to be examined, to get to the bottom of why you're twice as likely to be shot if you're an unarmed black male."

As a whole, the United States incarcerates more of its population than anywhere else in the world. While the U.S. represents only 5% of the world's population, it has 25% of the world's prison population. There are more Americans are in jail or under corrections supervision than were in Stalin's gulags. But these numbers alone don't convey the racial discrimination of the American prison state.

A Pew Research Center analysis reported that black men are six times more likely than white men to be imprisoned. The study demonstrates that the incarceration rate for blacks has worsened since before Civil Rights legislation was enacted in 1964. "In 1960, the white male incarceration rate was 262 per 100,000 white U.S. residents, and the black male rate was 1,313, meaning that black men were five times as likely as white men to be incarcerated," according to the Pew analysis.

There is no other country on the planet that locks up a racial minority group at remotely near the rate the United States does with African Americans. Even under the notorious racism of the apartheid regime in South Africa, blacks were not imprisoned nearly as much as in the United States.

The incarceration rate was nearly six times higher for black males in the United States than for black males in South Africa during apartheid (4,848 per 100,000 in 2001 vs. 851 per 100,000 in 1993), according to a study published by the Western Prison Project and the Prison Policy Initiative.

The driver behind what has popularly become known as mass incarceration is the hyper-criminalization of drug use, This has been exposed by Michelle Alexander, in her landmark book The New Jim Crow: Mass Incarceration in the Age of Colorblindness as a vast system of social control and institutional discrimination, which has evolved from the Jim Crow South to accomplish many of the same oppressive ends under the guise of legal justice.

Jamie Fellner, Senior Counsel with the U.S. Program at Human Rights Watch, wrote in her report Race, Drugs, and Law Enforcement in the United States that the "costs and benefits of this national 'war on drugs' remain debated. What is not debatable, however, is that this ostensibly race-neutral effort has been waged primarily against black Americans" who are "disproportionately arrested, convicted, and incarcerated on drug charges" relative to their percentage of the population. Fellner called into question U.S. compliance with the International Covention on the Elimination of All Forms of Racial Discrimination, a treaty which the U.S. has ratified.

While Americans hold wide prejudices that African Americans take and sell drugs more often than whites, the data have consistently shown this is simply not true. Studies demonstrate that blacks are less likely to use and abuse drugs than whites, and that they are less likely to deal drugs than whites.

Marijuana arrests account for a huge portion of the arrests carried out as part of the war on drugs that has led to the explosion in the prison population. When you isolate marijuana use by race, there are no statistically significant differences between whites and blacks. Both groups use them roughly at the same rate. The same is true among youths.  But the rate of arrests is unmistakably unequal across the nation.

"Racial disparities in marijuana possession arrests are widespread and exist in every region in the country," the ACLU wrote in their report The War on Marijuana in Black and White. They noted that in more than one-third of states, the rate of arrests of blacks was more than four times higher than that of whites for marijuana possession.

Life expectancy is one of the most important indicators of public health. The life expectancy of blacks (74.5 years) is more than four years less than that of whites (78.8 years), according to a Center for Disease Control and Prevention study published last year. This is actually a "historically record-low level" of difference in life expectancy, although it is still outrageously high for a developed nation with the wealth of the United States.

The numbers for wealth inequality are just as stark. The gap between median white net worth ($141,900) is 13 times greater than that of black net worth ($11,000), according to the Pew Research Center. They report that in the wake of the "Great Recession" that began in 2008 the difference has been exacerbated.

Every other significant economic indicator - income, home ownership, unemployment - confirms the enormous chasm between whites and blacks.

No amount of conservative denial can erase these facts. Of course, if you remove the context and look at individual stories in a vacuum you can distort the extent of the oppression. There are more than 40 million African Americans in the U.S. and so far this year there have been somewhere between 100 and 200 killings of blacks by police.

Naturally, not every black person is being killed. But the rate people are being killed is much too high compared to other ethnic groups inside the country and to other countries overall. This is not a problem the media has created, or that progressives have blown out of proportion. Any honest contextual analysis would have to acknowledge the inequality and discrimination that manifests itself in the actions of police, the courts, the economy and the health system. It points to one undeniable conclusion: blacks in the U.S. are oppressed. This is a direct result of deliberate policies formulated and carried out through the institutions of the state, not through the free market or personal choice.

The most important accomplishment of Black Lives Matter has been to make these issues visible to so many people across the country. Unfortunately, many who benefit from white supremacy are determined to keep it invisible. As the national conversation shifts to confront systemic racism and discrimination, conservative confirmation bias is difficult to overcome. But in the end the facts speak for themselves. The more they lead to real social change, the stronger the conservative backlash will be at those who bear the message. Fortunately, the movements that have developed have shown every indication they are up for the challenge and are in the struggle for the long haul. 

Monday, June 8, 2015

Cuomo's Takeover of New York Horse Racing

American Pharoah last week cruised to a five-length victory in the Belmont Stakes and became the first thoroughbred to claim horse racing's Triple Crown in 37 years. The publicity and excitement of finally having a 12th Triple Crown winner should be a much needed boon to a sport that long ago lost its iconic place in American culture. In New York, where American Pharoah's victory took place, Governor Andrew Cuomo has taken advantage of the moribund status of the horse racing industry to unilaterally takeover the state's thoroughbred circuit to create a gift for wealthy corporations and donors.

The New York Racing Association, a not-for-profit organization that holds the franchise rights to operate the three tracks in the state (Aqueduct, Belmont and Saratoga), was created in 1955. NYRA is regulated by the New York State Gaming Commission. In the past, NYRA had been plagued by scandals and corruption, leading to its declaration of Chapter 11 bankruptcy in 2006. In a bailout organized under disgraced former Governor Eliot Spitzer, NYRA was forced to surrender its ownership of the three race tracks in return for a new 30-year lease. The organization was disbanded in all but name as the management and the board were completely overhauled.

The new entity was respected by the industry and the fans. They managed to stabilize NYRA's fiscal situation, bringing them back into the black without do so at the expense long-time racing fans. In fact, they even introduced price decreases at Saratoga Race Course. Food and drinks at the beautiful and historic racetrack, the oldest in the United States, which draws hundreds of thousands of visitors every year from across the country and the world, were as low as any sports entertainment venue in the country. By all accounts, the new management had done as well as anyone could have hoped for.
But in 2012 Cuomo essentially organized a coup in which the NYRA board "agreed" to be replaced by appointees from the governor himself, as well as both branches of the state Legislature. This was billed as an interim arrangement, with the bill mandating a three-year term for the newly reorganized board, which would then "be returned to private control, remaining in the form of a not-for-profit corporation."

Andrew Beyer, a columnist for the Washington Post and a legendary horse racing handicapper, wrote that an unintended error that short-changed bettors $8.5 million dollar because of the expiration of an obscure state law that reduced takeout, and went unnoticed not just by NYRA but by state oversight organizations, served as a convenient pretext.

"This was Cuomo's opportunity to execute a coup. The governor is a staunch supporter of the casino industry, which can generate significant revenue for the state, not to mention large political contributions. Because of the law giving racetracks a subsidy from slot-machine funds, horse racing siphons away money that politicians want for their own aims," Beyer wrote.

Another respected racing journalist, Ray Paulick, also called Cuomo's takeover maneuver a coup d' etat.

"Like any good politician, Cuomo talks a good game, and says this reorganization is being done for the benefit of the horseplayers who entrust their faith in racing, along with the taxpayers, and the horses themselves," Paulick wrote. "More than a few people believe Cuomo is creating something akin to the New York off-track betting system that has been a model for how not to do things: a structure that allows political hacks to give jobs to friends and family and eventually create a bloated bureaucracy that is doomed to failure."

While it would certainly be positive to subject any organization to democratizing reforms, this is far from what happened. Cuomo certainly never campaigned on the NYRA issue. There wasn't even a pretext of selecting new board appointees to better represent the public. They were chosen to do Cuomo's bidding, plain and simple. While Cuomo and state legislators are theoretically accountable to the public, in reality they know their next election won't turn on their handling of the situation.
If there were any illusions that making NYRA a government agency would increase transparency, they quickly went out the window. Tom Noonan, a blogger on New York horse racing, questioned from the beginning why the new CEO was awarded a contract for nearly $100,000 more than the previous CEO, who had been summarily dismissed after Cuomo's coup. Noonan filed numerous requests under the Freedom of Information Law (FOIA), including for copies of CEO Christopher Kay's contract and performance standards that would entitle him to a $250,000 bonus.

"There could not be a better example of NYRA's blatant flouting of the public records law than their response to my request for documents from other entities concerning NYRA's obligations to act under both the public records law and the Open Meetings Law," Noonan wrote. "They denied any such documents existed, even though there is an opinion from the Committee on Open Government - the state agency with responsibility for overseeing both of these laws - stating that NYRA was indeed subject to them."

The real reason for Cuomo's sudden interest in "reforming" the New York racing industry is his plan for a $4 billion convention center on the current site of Aqueduct Race Track. This ill-conceived idea was laid out in his 2012 State of the State address, in which he announced his "new economic development blueprint that invests billions of dollars in key public-private sector partnerships ... a reinvention of how government operates."

In reality, these public-private ventures are not a reinvention of anything, they are exactly how government has worked for the last several decades. They are a great way for politicians to grab headlines and promote impressive sounding promises of returns - businesses, jobs, tax revenue - that never materialize as promised.

Cuomo knew the NYRA board would never voluntarily give up their track for his pet project. Neither was their any public demand for it. The Associated Press noted that "public opinion polls .. didn't share Mr. Cuomo's enthusiasm for a 3.8 million-square-foot facility in Queens that could turn into a casino complex." The solution was to steamroll the project through before anybody knew what happened. But first he would need authority that he didn't have.

With the stage set, Cuomo executed his takeover of NYRA and installed his handpicked lackeys. Now holding majority voting power, they would be able to sanction his ill-advised plan to collude with developers and casino moguls to create a "mega-development."

Essentially Cuomo's entire economic plan as governor has consisted of tax cuts for corporate business with the promise that this would bring jobs. The optimistic talk has so far yielded laughably bad results, with a grand total of 76 jobs created in the first year of his Start-Up New York program. Cuomo has also enthusiastically supported the expansion of private charter schools as the wealthy groups behind them donate millions of dollars for his campaign coffers.

There are alternatives Cuomo could be pursuing instead of wooing big business with state money. Lawrence Wittner, Professor of History at the State University of New York at Albany, writes in CounterPunch that "instead of shoveling billions of dollars into the coffers of private, profit-making companies, New York could invest its public resources in worthwhile ventures that generate large numbers of jobs - for example, in public education."

Thankfully, Cuomo's plan for a mega-convention center appears to have fallen apart. Devoid of its raison d' etre, the coup-installed NYRA board has stumbled through its three-year term alienating fans and instituting corporate discipline on a non-profit institution. "NYRA has become profitable by a combination of cutting workforce, raising prices as well as having a fantastic Belmont Stakes Day," reported the Daily Racing Form. Hard-core fans were livid last year when admission to Saratoga was raised 60% just a month after the debacle at the Belmont Stakes, where food and beverages ran out in the early afternoon and thousands were stranded for hours on train platforms and in the parking lot after the race. This year, admission to the Belmont Stakes was raised nearly 100%.

Having demonstrated their disregard for state transparency laws, Cuomo's new NYRA board has also failed to give up their control as they are required to by law. The state budget has proposed extending their tenure for another year. So the zombie board rolls on, indifferent, at best, to the interests of the public and the sport itself.

Though far removed from its heights, the Sport of Kings still counts tens of thousands of fans in New York State, in the region and beyond. There is also a sizable industry of people who depend on racing for their livelihood. They are not just the trainers and jockeys, but veterinarians, stable hands, exercise riders, hot walkers and farriers.

If Cuomo had intended to make a legitimate public investment - in public housing or public education, for instance - and made the case that this outweighed the benefits of allowing independent management of horse racing in New York, his takeover of NYRA would be justifiable. But a unilateral power play to ram through a gift to developers and potential campaign donors without demonstrating how this would be a valuable use of taxpayer funds and assets demonstrates Cuomo's authoritarian tendencies.

From his office in Albany, Cuomo already has his eyes set on Washington. He doesn't plan to live out his golden years questioning "What if?" like his father Mario. Cuomo has proven to be a devoted neoliberal, imposing austerity and cutting public services while funneling state tax dollars and assets into the hands of private enterprise, so they can profit from them. With his progressive rhetoric and business-friendly policies, Cuomo is a rising star in the Democratic Party and a possible successor to Hillary Clinton. This bodes well for Cuomo's career prospects, but poorly for the United States' political system and economy.