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ASK QUESTIONS LAST

Name:            2ruTh
Offense:         2nd Degree Murder
Sentence:        Life (with chance of parole after 15 years)
Age at the time of offense: 20
Age at the time of writing: 31
Incarcerated in: Massachusetts

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     “I’ve never actually committed an act of physical violence, so I can’t say I’ve ever victimized anybody in that way.” The federal prosecutor seated next to me responded measuredly to the discussion prompt posed in our circle at the seventh annual Restorative Justice Responsibility Retreat at Norfolk prison in Massachusetts. “I know I’ve contributed to a system that has disproportionately harmed people of color. I’ve contributed to the status quo of institutional violence in that way.”

     The judges, prosecutors, and parolees, along with the prisoners in the group, had been invited to expound on the ways that our actions had produced victims in the community. The same prosecutor continued. “I haven’t had many Black friends,” he explained. “I wouldn’t consider myself a racist, but I’m aware that I’ve been socialized to view Black men as aggressive and dangerous. I would be naïve to think that that conditioning hasn’t somehow affected the way I do my job.” He spoke with the candor of a man acquainted with the liberating agency that accompanies the reconciliation of repressed truths—the kinds of truths that serve to undermine a man’s confidence in his own goodness.

     This having been my fourth retreat, I’d come to expect such radical displays of vulnerability. But in spite of his forthrightness, I wanted to know what remedial alternatives this minister of justice had considered which might serve to check the defective status quo that he and other court officials like him had admittedly been operating under. I wondered whether, in his capacity as a public servant, he had considered the potential value of requiring prosecutors to attain an ancillary background in sociology. Also to what extent such a requirement might result in a school of D.A.s more thoroughly informed of the sociological factors that led to the crimes they’d been appointed to process. Would a more intimate understanding of the community and the role that it plays in an offender’s development help to quell some of the biases that many social servants have been conditioned to harbor against citizens from particular demographics?

     In our brief transition back to the prison auditorium, I posed the question to him. He hesitated. “You know . . . I don’t know,” he grimaced. “That sounds like a really high bar. I think the change we’re talking about here begins with accepting personal responsibility.” Our exchange was cut short by one of the ushers motioning for the D.A. to take his seat. He bade me half a nod and waded through a cluster of prison residents waiting for permission to be seated. It took me a few days to digest everything he said regarding his own sense of responsibility for the damage the legal justice system has caused to communities of color. I’m still processing everything I didn’t hear him say.

 

     Danielle Sered, Director of the Brooklyn-based organization Common Justice, speaks pointedly to the necessity of owning responsibility, specifically as it relates to the violent crimes that account for more than half of the 2.2 million citizens housed in America’s state prison system. In her book Until We Reckon: Violence, Mass Incarceration, and a Road to Repair, Sered submits that “Just as we ask people who cause interpersonal violence to reckon with their actions, so should we as a society call on ourselves to reckon, too. Until we do [so], no different future will be possible.”[1] I suspect that to some extent, this was the kind of personal responsibility my prosecutor friend had been referring to. And while I’m immensely grateful that he in fact took the initiative to own his, I suspect that there are legions of others in his position who fail to recognize the incentive to do the same—not because they’re bad people, but because the willingness to accept responsibility for one’s own transgressions is fundamentally contingent upon one’s awareness of their biases and the corresponding value (or lack thereof) that they assign to the individuals impacted by their decisions. Despite the fervent personal effort put forth by my prosecutor friend, he left me with little cause for optimism. I found no reason to be encouraged, given the enduring practices within the prosecutorial culture in America’s justice system—a system which grants to its officers complete, nearly unencumbered discretion to either explore or ignore the far-reaching implications of their unchecked prejudices—specifically as they  pertain to inner-city violence.

 

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     Any time a violent crime is committed—when the fragility of one’s very being is brutalized and injured—the people directly and indirectly impacted by the act require answers. They require an account for the losses they’ve sustained: their loss of safety and security, and in many cases, the loss of a loved one. Survivors of violent crime are typically burdened with an unquenchable desire to understand why: Why did the violent event happen? Why did it have to be them who were violated in such a way? Why was their right to safety not upheld by the community?

     While it seems a meaningful explanation for survivors might entail more than a circumscribed query into the immediate circumstances surrounding the crime itself, the general focus of investigations into community violence tends to center around the static facts related to the act, while largely suspending any curiosity regarding the actor. Consequently, we (the survivors and the community at large) are led to conclude that there could never be a rational explanation which could adequately account for the life-altering violence that occurs in our neighborhoods—especially in our inner cities. We are thereby justified in our resolve to treat young men who shoot their peers down in our community streets as one-dimensional miscreants, and nothing more. The adjectives we use to define their entire being before disposing of them (heartless, cold-blooded, menacing, etc.) typically correspond with the State’s nil-informed presentation of these violent actors. Ultimately, because of our lack of insight regarding the offender and our system’s reluctance to engage in an impartial preliminary examination of the actor, we are precluded from acquiring the answers we so desperately need—answers which are required for our personal and communal healing. Instead, our system offers us just enough of the story to secure a conviction; we’re never given the impression that there might possibly be more to unpack. And since that’s all the system offers, we take what we can get. No questions asked.

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[We] know there are system failures happening everywhere that bring people to our courtrooms. But what we do not discuss is how ill-equipped our prosecutors are to receive them. When we talk about criminal justice reform, we as a society focus on three things. We complain, we tweet, we protest about the police, about sentencing laws and about prison. We rarely, if ever, talk about the prosecutor.

 

. . .  When I came out of law school, I did the same thing as everybody else. I came out as a prosecutor expected to do justice, but I never learned what justice was in my class—none of us do. None of us do.[2] 

                                                                             —Adam Foss

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     In the State’s efforts to bring me to justice following the homicide for which I’m currently incarcerated, the then District Attorney launched a routine murder investigation: a team of professionals was assigned to the case, motivated by an intense interest in learning the exact details of what happened. Detectives collected evidence. Witnesses offered their recollection of what they saw. Prosecutors developed their own theory of motive in order to provide an explanation as to why the crime was committed, and my lawyer formulated an opposing theory to challenge the State’s allegations. Yet somehow, despite the loads of resources, time, and energy invested in arriving at the answer to the central question of why this tragedy occurred, the system offered me neither an opportunity nor a reasonable incentive to engage honestly in the process of resolving the matter of my own accountability. Despite the fact that my voice would likely have served as a primary source for the answers they sought, the State’s zero-sum concept of justice provided no accommodations for my truth. The system’s hyper-punitive temperament toward violent crime (in this case, manifest in a first-degree murder charge and the corresponding threat of a natural life sentence), along with its expressed predisposition to weaponize any explanation I might have offered (as stated in its arrest warnings: “anything you say can, and will, be used against you”) coalesced to confirm that honesty and candor would prove supreme liabilities to my defense. My only hope for self-preservation would ultimately be contained in a single, unsophisticated lie—“Not Guilty”—and after that, a passive assertion of my right to remain stubbornly and silently resistant to any allegations leveled against me.

           

     As trial drew closer, my court-appointed attorney adamantly re-affirmed the zero-sum ethos which rendered my voicelessness the most prudent approach to the defense. Counsel apparently understood that if I took the stand to testify on my own behalf, any truth I offered would be aggressively scrutinized and contorted to fit the one-dimensional theory that the State’s investigation had produced. The prosecution had learned about my history of selling drugs and carrying guns, along with the fact that I and the victim had in fact been friends at one point. They also came to learn that I’d been violently assaulted by the victim and at least one other man just moments before the shooting. Witness testimony suggested that the assault stemmed from a prior dispute between me and the victim, but the root of the beef was never confirmed. At the close of trial, my attorney surmised in his closing remarks to the jury: “Something happened . . . something apparently that had to do with money.” The prosecution followed by conceding its uncertainty as to “whether [the altercation] was over money owed or a friendship gone astray, or something else entirely.”

     Both attorneys’ closing statements effectively illustrated the system’s failure to ascertain the ultimate cause—the why—of the fatal clash. In the end, not only had the system failed to center its efforts around the community’s need of a meaningful explanation, it also failed to elicit any reasonable sense of optimism that the State ’s fragmentary standard might be sufficient to reduce the likelihood of a similar tragedy in the future.

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     It’s a fact that I wasn’t legally of age to possess the gun I used to shoot the victim in my case. It is also true that when I committed the crime, crack distribution served as my primary source of income. Cursory analysis of these facts alone might suggest that my decision to arm myself with an illegal gun had much to do with my decision to compensate for the safety hazards one would expect to find in the world of the illicit drug trade. It could also be presumed that my decision to enter that world amounted to a tacit waiver of any expectation for personal safety that I might have enjoyed otherwise. But if someone asked me, I would have made it perfectly clear that my expectation for safety in Boston’s inner city had been grim well before my first drug transaction; personal safety had never been something I’d experienced as a natural right, but any such expectation  was drastically reduced in that environment. If someone had asked, I would have recounted various instances of direct and indirect violence that I incurred as a young member of the Commonwealth. I would have articulated symptoms of depression, paranoia, and anxiety—all likely by-products of the violence I had survived. Given a reasonable incentive, there’s a strong chance I would have conceded the wrongfulness of girding myself with a weapon capable of such grave devastation, and I would have explained that at that time, illegal possession was, in fact, the only perceivable means at my disposal which could have provided me with some measure of assurance that I would make it home in one piece; the alternative, in my mind, amounted to the greatest possible wrong I could have committed in my struggle for survival. But regrettably, nobody asked. Instead, the ADA’s scathing summation of the case in her final remarks confirmed that my voice remained an inconsequential element for assuaging the community’s desire for justice.

 

“Would a reasonable person get mad in this situation? Absolutely!” she submitted. “You’ve just been attacked. You’ve been pushed, you’ve been kicked, you’ve been choked. But do you honestly think a reasonable person in this situation would lose the ability to exercise restraint to reflect upon the fact that there were other options besides going back in your Mercedes Benz, opening your secret compartment, taking out your Glock semi- automatic .40 caliber pistol, and chasing [the deceased] down to execute him? What other options could one consider, still being angry, still feeling in the heat of passion for being assaulted? Let’s think. Use your cell to call 911. . . . How about this ladies and gentlemen? How about the fight is over, you get back into the safety of your Mercedes Benz sedan and you drive away, because the fight is over. The threat has turned his back on you and started walking [away].”

 

     The Prosecution decided on behalf of the community that it didn’t need me in order to deduce the rationale which precluded me from seeking out police to restore my already tenuous sense of security. Had someone asked, though, I’m sure I would have cited the beating I took from police when I was 14—the assault  that left me with a rib contusion and a bruised retina behind an eyelid which would remain  swelled shut for days. I could also have shed light on one critical factor the prosecution disregarded in their fact finding: In the course of their investigation, the State found that not only had I been beaten moments before the homicide, but the assailants had robbed me of my wallet, procuring my license and my home address in the process. There’s a chance I would have explained that I fired on the victim out of fear and helpless anticipation of the violence that I could now expect would find its way to my home. Not only was there potential for further victimization in my future, but having known the deceased, I understood just how probable that was.

 

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In recent years, a full 52 percent of violent victimizations in the United States went unreported[.] 56 percent of cases in which victims were injured went unreported, as did 42 percent of cases involving a weapon. Even 29 percent of cases involving a serious injury went unreported to police[.] More than half of people who survive serious violence prefer nothing to everything available to them through law enforcement. . . . [And] these reporting patterns hold across demographic groups.

           

. . . If you ask survivors of violent crime what they’re worried about, it’s people who may hurt them. And many people don’t trust police to protect them.[3]

                                                            —Danielle Sered

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     The Commonwealth’s responsibility to assess the reasonableness of my violent decision in this circumstance was ultimately subverted by its indifference toward the scope of my experiences as a survivor. In effect, the system’s status quo deprived itself of the necessary means to consider the various ways in which trauma serves to contort many survivors’ sense of reason as they endeavor to survive imminent threats of brutality in their communities. My case presents an unexceptional example of the system’s oblivion to the post-traumatic fear and helplessness that drive the violent decisions of many surviving offenders—just one example of the justice system’s attempt to manage the effects of a cause it made no effort to measure.

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     In order to measure the rationale which drives many community members to commit crime, Law Professor Adam Benforado looked to science for answers. In his book Unfair: The New Science of Criminal Injustice, Benforado reasons that “By imagining most criminals as autonomous, rational actors deciding to pursue greedy, lustful, or hateful ends, we underestimate the significance of forces in the world around us and [the] dynamics in our brains over which we have little control.”[4] Neuroscientists have identified the amygdala as the part of the brain responsible for the fight or flight response that occurs in the face of a perceived threat; it is the part of the brain which is especially susceptible to impairment when one is exposed to extreme or consistent incidents of trauma. Benforado notes links between this type of trauma-induced amygdala dysfunction and the potential for violent behavior:

The amygdala . . . is thought to play an  important role in regulating aggression. Neuroscientists have identified this area as critical for understanding the beliefs, interests, desires, and emotions of others. When it is not functioning properly, a person may be at an increased risk of committing violence, because it is the ability to appreciate the shock, fear, and distress of others that help prevent us from harming people.[5]

 

     Researchers acknowledge the high potential for PTSD to develop as a result of exposure to community violence.[6] They have also found that community members who experience a combination of direct violence (as a victim) or indirect violence (as a witness) suffer higher incidents of PTSD in immediate instances, and throughout the course of their lives.[7] Post-traumatic symptoms, such as the hyper-arousal that might occur in response to a perceived threat, are recognized by experts as a pragmatic attempt on the part of the mind and body to survive overwhelming trauma. These symptoms are said to be “normal reactions to abnormal events.”[8]

     It should be no surprise, then, that inner-city communities—largely characterized by inordinate concentrations of unacknowledged, untreated trauma—would reproduce the cyclical culture of violence and victimization that they do: a culture sustained by the very survivors who have proven most vulnerable to it. They are the young; theirs are the psychiatric sores that septicize through adolescence straight into the age of full accountability under the law. Society assumes their survival is somehow a testament to the outgrowing of their phobias and the wounds which precipitated them. So we don’t concern ourselves with perils they’ve had to endure just to make it to the age of accountability; we don’t wonder what it takes for them to sleep at night, or if they sleep at night. Rather, we take their survival for granted. We suppose that in America, war wounds come with the typical disclaimers that accompany patriotic career paths—those  that provide robust health benefits and periodic leave; but we take no tally of the environmental landmines that surviving offenders have to dodge  simply to live long enough to attain eligibility for a state prison sentence.  We, as a society, are persuaded that these violent actors—the hardened, unreasonable ones—have somehow been conditioned for the life sentences we impose. We’re sold rather easily on this notion, partly because we believe we understand why they act the way they do, and partly because we are convinced that we never could. So we assume the right to criminalize their wounds. We have no concept of where they’ve been, but it’s entirely worth it to us to expose ourselves to the effects of their savagery in order to tame them. For they are, as far as we can see, the rightful property of the public—the state-sanctioned object of our unexamined terror and disdain.

 

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     The exaggeration in our culture’s narrative about the harm caused by men of color is a central element in normalizing the violence, as black men’s overstated criminality becomes justification for sanctioning police violence against them, blaming them for their own victimization, not investing in victim services to tend to their pain, and presuming that their childhood exposure to violence was part of a socialization process that just made them harder and more violent, rather than understanding the process as something that harmed them.[9]

                                                —Danielle Sered

                    _______________________________________________________________________________                           

     The zero-sum justice game—which exploits the vulnerability of its wounded subjects by valuating, comparing, and/or wholly disregarding their distress with punishment as its primary ambition—operates on the premise of a fundamental failure to appreciate the subjects’ wounds for   what they are: indelible marks of hard-earned survival and sources of excruciating pain, numbing   pain. Sered diagnoses the implications of our over-reliance on punishment as a substitute for   addressing the survival status of inner-city surviving offenders:

 

     Punishment—and deterrence in particular—is rooted in an assumption that people lack an   adequate level of fear, and that if they were more afraid (in this case, of the consequences of their   actions), they would behave differently . . . . In neighborhoods where poor people hear gunshots   through the night and walk around chalk outlines and police caution tape in the morning, virtually the   only people who are not afraid are those who have felt so much fear they have crossed through into   numbness. And in neighborhoods where, statistically speaking, one in three boys born today are   likely to be incarcerated in their lifetime, the only young men who do not fear prison are young men   who have accepted its inevitability or have exceeded their maximum capacity for fear so much as to   have become inured to it. The problem is that numbness is not indifference, nor is it a feeling of   omnipotence. Numbness, like despair, is what experts call “a trauma response” to an unmanageable   excess of fear and terror. For the purpose of deterrence, the trouble with trauma response is that you   cannot scare them away. To the contrary: increasing fear only further entrenches such responses and   the harm that arises from them.[10]

 

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     Whenever violence is manifest in the community, it must, of course, follow that society hold the responsible parties accountable for their actions; but calibrating the scales of justice can prove especially complicated in inner-city communities where experiences of victimization and perpetration overlap so commonly. The punishment epidemic responsible for America’s mass-incarceration crisis should serve as evidence enough that our system’s zero-sum methods of doing justice have failed to meet a standard which could be said to uphold America’s commitment to do justice for all. With violent crime accounting for more than half of the nation’s 2.2 million citizens in state custody, we no longer have the luxury of repudiating violent offenders in our quest for justice reform. The hauntings of defective legislation from decades past will persist in the steady erosion of our social, moral, and economic interests, if we continue to begrudge the current demand to challenge our criminal legal system’s inequitable methods and the partial perceptions that have sustained them.

     In practice, this would require policy which includes pretrial trauma screenings of violent offenders who come from communities with high rates of trauma and violence. Violent actors in this context would be granted fair opportunity and incentive to participate in the critical process of sorting through the mitigating mental health factors likely to have played a controlling role in the crime. Under said policy, violent offenders could access true incentive to accept accountability for the immeasurable harms they impose on the community. Incentive in this context would not be realized by capitulating to the familiar standard of judicial manipulation whereby offenders are expected to assume the dangers and indignities of State informants in order to avoid the fiercest penalties associated with the uninformed, reactionary charges brought against them. Rather, incentive would be found in policy which provides pretrial access to victim-centered restorative processes—participatory processes in which victim/survivors and surviving offenders would have the option to engage the nuanced causes and effects of community violence as a multi-tiered approach to holding violent offenders accountable: an approach which might ultimately still include a prison sentence. Under this model, the incentive for community stakeholders would reside in knowing that their system actively sought to render justice which was informed, and properly proportioned to the underlying circumstances of the crime.

 

     As America presses forward in its quest to realize meaningful justice reform, society will be called upon to make a concerted determination as to whether we are willing to live with the proven consequences of neglecting to explore informed alternatives of doing justice, or if a more intentional, equitable approach to realizing our ideals is possible.

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[1] Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road

 to Repair (New York: The New Press, 2019), 237.

[2] Adam Foss, “A prosecutor’s vision for a better justice system,” TED Talk Subtitles and Transcript, March 2016 (Web 1 March 2017, 4:58, 8:35).

[3] Sered, 34.

[4] Adam Benforado, Unfair: The New Science of Criminal Injustice (New York: Crown Publishers, 2015), 48.

[5] Benforado, 52.

[6] P.J. Fowler, C.J. Tompsett, J.M Braciszewski, A.J. Jacques-Tiura, and B. B. Baltes, “Community violence: A meta-analysis on the effects of exposure and mental health outcomes of children and adolescents, Development and Psychopathology 21:1 (Jan. 2009), 227-259.  

[7] M.R. Kulkarni, S. Graham-Bermann, S.A. Sauch, and J. Seng, “Witnessing versus experiencing direct violence in childhood as correlates of adulthood PTSD,” Journal of Interpersonal Violence, 26, 6 (2011), 1264-81.

[8] Lisa M. Najafits, Seeking Safety: A Treatment Manual for PTSD and Substance Abuse  (New York: The Guilford Press, 2002), 118.

[9] Sered, 212.

[10] Sered, 63.

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