A missive about when the big issues of the day converge in a single client
I have found myself unable to write this last month, not because of busyness but because I have felt a bone deep anger and sadness that has rendered me virtually speechless.
Some types of anger and sadness quickly metabolize into newfound energy and a strengthened ability to communicate.
Other types of anger and sadness feel so heavy that it blocks both energy and words, leaving me with a lot of feelings that take some time to translate into words. This is where I have been recently. Only in the last few days have those words started to trickle up from my body through my Vagus nerve to my brain. As usual, the words began to flow as I walked in the woods. Indeed, much of this newsletter is based on a voice memo to myself as I wandered in the rainforest with my dog, Zero.
As some of you know, I recently started a new job in death penalty defense—work that has called to me for years following a couple of law school internships in the field. Work I hope to do until we abolish the death penalty in this country.
The timing of this return to capital habeas work has placed much of what is happening in our country and around the world in stark perspective. The many levels of disregard and disrespect for human life— or, as Adam Serwer so eloquently put it: the cruelty is the point.
I cannot help but feel that we are at yet another watershed moment, but this one may be our last. A choice point that may determine if human life on this planet continues, or not.
The time for angry social media posts and marches has come and gone. Mobilizing in these ways, and others, is important but it is not enough to halt the powerful inertia of destruction. There must be organizing and action to bring about broader, long-lasting change.
Here are some of things I have been thinking about as I process the enormity of what we are facing as a nation, and for so many, as individuals. I have been thinking about the below issues not just because they are in the zeitgeist but because I am bearing witness to the ways in which they are enacted upon, impact, and alter the course a single person and the many people surrounding them.
Here are my incomplete thoughts (footnotes lead to links to articles, podcasts, etc. on the issues):
I am thinking about our history of forced sterilization and forced birthing in conjunction with the potential likelihood of modern-day forced pregnancy and birthing.1 I am thinking about the criminalization of people who terminate their pregnancies, even people who miscarry, and the practitioners who treat them.2 I think about the criminalization of women more generally and their forced sterilization in our country’s recent past and our present.3
Indeed, Oliver Wendell Holmes wrote in Buck v. Bell, 274 U.S. 200, 208 (1927) (a case I read in law school):
[Carrie Buck] is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization
. . . .
It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.
I think about the number of people in the criminal legal system who themselves have been victims of state-sanctioned violence, sexual abuse, intimate partner violence or domestic abuse, forced removal from their homes, and other forms of abuse — physical, sexual, mental — experienced in foster homes, state institutions, and schools.4 Instead of being met with compassion, trauma-informed care, and other self-determined forms care, we further marginalize and traumatize them through incarceration.5
I think about the use of technology to track and identify people in ways most of us are unaware of.6 Things like facial recognition7, biometrics8, genetics9, and now, period and other kinds of body metric tracking apps10. All the various technology used in good faith by so many people can now be weaponized by the government and corporations to surveil, influence through disinformation, criminalize, and punish.
I think about when the exact moment is that children go from being these protected person at all costs, including the cost of the lives of the people gestating them, to become enemies of the state and are treated as such through forced removal11, criminalization12, disinvestment13, violence14, being called “illegal” or “super predators,” forced gender and sex identity, and more. (There are SO MANY readily available, reliable resources on each of these issues. Please take a look.).
I am thinking about how so many tools used by the criminal legal system, including plea bargains, are used as mechanisms of social control—of labor movements, of civil rights movements, of Black Panthers, Young Lords, other freedom fighting groups, and groups that force this country to look in the mirror, pushing us toward liberation.15
I am thinking about discussions in death penalty states that have had limited access to lethal injection drugs (due to drug companies refusing to sell their drugs to be used for executions) and are now exploring other ways to murder people, including but not limited to the electric chair, the gas chamber, and the firing squad.16
I am thinking about the recent, though not new news, reporting on drones and other “modern” war machines. Drones being used to kill widely and broadly, indiscriminately, often without good intelligence, leading to massive civilian casualties. And how few mechanisms, legal or otherwise, exist for those who have had loved ones stolen from them to receive any kind of justice, or even acknowledgement for their losses.17
And I wonder to myself, to borrow Adam Serwer’s title, the cruelty is, in fact, the point. And if cruelty is the point, what genuine arguments for “pro-life” there are, really, in this society? We clearly do not value life at all, and the few lives we sort-of value19 are hierarchical based on race, wealth, and power.
None of these issues are new to me, to you, to us, and they are definitely not new to our nation or this world. But as I re-enter capital habeas work, my observations and my knowledge of history, as well as my very existence in this society, are hitting in a different way.
So many of the cases I am working on engage with, touch, or involve nearly every single issue I have listed above. A case where people have already lost their lives, and my client may well be another casualty. But as I learn more about the context and life history of my clients, as well as their family and community histories, I see the impact of discrimination, criminalization, disinvestment, destruction, trauma, violence, apathy, and anger toward my clients and their communities long before, sometimes generations before, the event that ultimately caused that person to become my client.
It is going to take more than protests and social media posts to shift this society. It may feel like Sisyphean task but we must keep pushing in meaningful ways through sustained investment and organization, much as our forebears have shown us (thinking of Malcolm X, Fannie Lou Hamer, Cesar Chavez, and so many more).20
I don’t know what else to write this week. This is all I got right now.
Hopefully, you will follow some of these links, including Kwame Ture’s talk on organizing, and begin thinking hard about what you can do in your corner of the world. I know I will be marinating on this very question. Local issues matter, and indeed, it is local issues that drive national issues.
It will take every single one of us.
In peace, and respectfully submitted,
Melissa Murray, “Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade,” Harvard Law Review, available at: https://harvardlawreview.org/2021/04/race-ing-roe/.
Intercepted Podcast episode, also with Melissa Murray: https://theintercept.com/2022/05/18/intercepted-roe-wade-abortion-supreme-court/
Michele Goodwin, “The New Jane Crow,” The Atlantic, available at: https://www.theatlantic.com/ideas/archive/2022/05/maternal-mortality-pregnancy-deaths-overturn-roe/629816/
Jeannie Suk Gersen, “How Fetal Personhood Emerged as the Next Stage of the Abortion Wars,” The New Yorker, available at: https://www.newyorker.com/news/our-columnists/how-fetal-personhood-emerged-as-the-next-stage-of-the-abortion-wars
The National Association of Criminal Defense Lawyers’ Report on the criminalization of women seeking abortions or experiencing miscarriages, and the associated press related to the report, available at: https://www.nacdl.org/Document/AbortioninAmericaLegOverreachCriminalizReproRights
The Appeal, “Criminalizing Mothers,” https://theappeal.org/justice-in-america-episode-23-criminalizing-mothers/
Sanjana Manjeshwar, “America’s Forgotten History of Forced Sterilization,” Berkeley Political Review, available at: https://bpr.berkeley.edu/2020/11/04/americas-forgotten-history-of-forced-sterilization/
Lisa Ko, “UNWANTED STERILIZATION AND EUGENICS PROGRAMS IN THE UNITED STATES,” PBS, available at: https://www.pbs.org/independentlens/blog/unwanted-sterilization-and-eugenics-programs-in-the-united-states/
NPR, “The Supreme Court Ruling That Led To 70,000 Forced Sterilizations,” an interview with Adam Cohen, author of Imbeciles, available at: https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations
There is much on this topic but here are just three examples:
“In the United States, 1 in 6 state male inmates reported being physically or sexually abused before age 18, and many more witnessed interpersonal violence. Over half of male inmates (56%) reported experiencing childhood physical trauma.” Nancy Wolff and Jing Shi, “Childhood and Adult Trauma Experiences of Incarcerated Persons and Their Relationship to Adult Behavioral Health Problems and Treatment.”
Compassion Prison Project’s info page has some helpful graphs and stats: https://compassionprisonproject.org/childhood-trauma-statistics/
Equal Justice Initiative, “U.S. Interior Department Documents Abuses Against Indigenous Children in Government Schools,” available at: https://eji.org/news/u-s-interior-department-documents-abuses-against-indigenous-children-in-government-schools/
See, for example, Emily Widra, “No escape: The trauma of witnessing violence in prison,” Prison Policy Initiative, available at: https://www.prisonpolicy.org/blog/2020/12/02/witnessing-prison-violence/
Here are some general resources:
Electronic Frontier Foundation, “A Guide to Law Enforcement Spying Technology,” available at: https://www.eff.org/issues/street-level-surveillance
ACLU, “Surveillance Technologies,” available at: https://www.aclu.org/issues/privacy-technology/surveillance-technologies
Thorin Klosowski, “Facial Recognition Is Everywhere. Here’s What We Can Do About It.,” The New York Times, available at: https://www.nytimes.com/wirecutter/blog/how-facial-recognition-works/
Dave Gershgorn, “Facial Recognition Is Law Enforcement’s Newest Weapon Against Protesters,” OneZero, available at: https://onezero.medium.com/facial-recognition-is-law-enforcements-newest-weapon-against-protestors-c7a9760e46eb
ACLU, “Wrongfully Arrested Because Face Recognition Can’t Tell Black People Apart,” https://www.aclu.org/news/privacy-technology/wrongfully-arrested-because-face-recognition-cant-tell-black-people-apart
Science Friday, “Protests Shine Light On Facial Recognition Tech Problems,” available at: https://www.sciencefriday.com/segments/ai-equity/
Elise Thomas, “New surveillance tech means you'll never be anonymous again,” Wired UK, available at: https://www.wired.co.uk/article/surveillance-technology-biometrics
Belen Fernandez, “Biometric surveillance: Face-first plunge into dystopia,” Al Jazeera, available at: https://www.aljazeera.com/opinions/2022/1/31/biometric-surveillance-face-first-plunge-into-dystopia
Dave Gershgorn, “A Simple Way to Measure Whether Your Privacy Law Is Worth a Damn,” available at: https://onezero.medium.com/a-simple-way-to-measure-whether-your-privacy-law-is-worth-a-damn-2d591f0ac13
Carrie Arnold, “The controversial company using DNA to sketch the faces of criminals,” Nature, available at: https://www.nature.com/articles/d41586-020-02545-5
Jacob Stern and Sarah Zhang, “The Victims Left Behind by Genetic Genealogy,” The Atlantic, available at: https://www.theatlantic.com/science/archive/2021/01/genetic-genealogy-race/616171/
Lindsey Van Ness, “DNA Databases Are Boon to Police But Menace to Privacy, Critics Say,” Pew, available at: https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/02/20/dna-databases-are-boon-to-police-but-menace-to-privacy-critics-say
Podcast: A New Way to Solve a Murder, The Daily (NYT), available at: https://www.nytimes.com/2019/06/06/podcasts/the-daily/dna-genealogy-crime.html
Holden Williams, Ginny Kozemczak, and Dan Kinney, “Digital Health is Public Health: Consumers’ Privacy & Security in the Mobile Health App Ecosystem,” International Digital Accountability Council, available at: https://secureservercdn.net/126.96.36.199/99x.577.myftpupload.com/wp-content/uploads/2022/01/Digital-Health-is-Public-Health-Consumers-Privacy-and-Security-in-the-Mobile-Health-App-Ecosystem.pdf
Privacy International, “We asked five menstruation apps for our data and here is what we found...,” available at: https://privacyinternational.org/long-read/4316/we-asked-five-menstruation-apps-our-data-and-here-what-we-found
Rina Torchinsky, “How period tracking apps and data privacy fit into a post-Roe v. Wade climate,” NPR, available at: https://www.npr.org/2022/05/10/1097482967/roe-v-wade-supreme-court-abortion-period-apps
For example, Yvonne Elder Chase and Jessica Saniguq Ullrich, “A Connectedness Framework: Breaking the Cycle of Child Removal for Black and Indigenous Children,” available at: https://link.springer.com/article/10.1007/s42448-021-00105-6
Podcast: This Land, Season 2, available at: https://crooked.com/podcast-series/this-land/
For example, The Center for Public Integrity, “Criminalizing kids: What’s happening in communities,” available at: https://publicintegrity.org/education/criminalizing-kids/criminalizing-kids-whats-happening-in-communities/
For example, Nikole Hannah Jones, “School Segregation, the Continuing Tragedy of Ferguson,” Propublica, available at: https://www.propublica.org/article/ferguson-school-segregation
Some search terms: “school-to-prison pipeline,” “school shootings,” “ACES scores and children,” “trauma-informed education” — what is it? Why is it necessary? “effects of racism on children”, “center on the developing child,” “Adele Diamond”
Martin Sabelli, “From the President: Boston, Workers, and the Trial Penalty — Expanding the Reach of Criminal Laws Without Increasing the Burdens on the Prosecution,” available at: https://nacdl.medium.com/from-the-president-boston-workers-and-the-trial-penalty-expanding-the-reach-of-criminal-laws-4fcfbe844574
Somil Travedi, “Coercive Plea Bargaining Has Poisoned the Criminal Justice System. It’s Time to Suck the Venom Out.,” ACLU, available at: https://www.aclu.org/news/criminal-law-reform/coercive-plea-bargaining-has-poisoned-the-criminal-justice-system-its-time-to-suck-the-venom-out
Bakari Kitwana, “The 16 Black Panthers Still Behind Bars,” Colorlines, available at: https://www.colorlines.com/articles/16-black-panthers-still-behind-bars
Alexandria Herr, “‘They criminalize us’: how felony charges are weaponized against pipeline protesters,” the Guardian, available at: https://www.theguardian.com/us-news/2022/feb/10/felony-charges-pipeline-protesters-line-3.
Elizabeth Breunig at The Atlantic:
“Can America Kill Its Prisoners Kindly?”, available at: https://www.theatlantic.com/ideas/archive/2022/03/death-penalty-lethal-injection-lawsuit/629383/
“Two Executions on a Thursday in America,” available at: https://www.theatlantic.com/ideas/archive/2022/05/lethal-injection-carl-buntion-texas-death-row/629735/
Methods of Execution, Death Penalty Information Center, available at: https://deathpenaltyinfo.org/executions/methods-of-execution
Azmat Khan’s work: https://azmatzahra.com/
Podcast: “Counting Civilian Casualties in Iraq,” The Daily, available at: https://www.nytimes.com/2017/11/17/podcasts/the-daily/airstrikes-isis-iraq-civilians.html
“Drone Wars,” The Intercept, available at: https://theintercept.com/collections/drone-wars/
Podcast: Throughline, “Drone Wars,” available at: https://www.npr.org/2021/11/03/1051947725/drone-wars
Podcast: “The Unseen Trauma of America’s Drone Pilots,” The Daily, available at: https://www.nytimes.com/2022/05/09/podcasts/the-daily/drones-airstrikes-military-ptsd.html
Tim McDonnell, “The Refugees The World Barely Pays Attention To,” NPR, available at: https://www.npr.org/sections/goatsandsoda/2018/06/20/621782275/the-refugees-that-the-world-barely-pays-attention-to
Jonathan Metzl, Dying of Whiteness, available at: https://www.basicbooks.com/titles/jonathan-m-metzl/dying-of-whiteness/9781541644960/
WORTH A FULL LISTEN! Video: Kwame Ture, Organization v. Mobilization talk, available at: https://www.itsinscope.com/research-internal/2020/10/31/kwame-ture-organisation-vs-mobilisation
Jason Mogus, “Organizing vs Mobilizing – focusing your campaign to win,” available at: https://netchange.co/organizing-vs-mobilizing