Dehumanization Begins with the Law

I cried when I read my report to the court on the sentencing of 15 year old Diego Melendez. I  had actually advocated for a 30 year sentence for this child. Why? Because the judge determined the sentencing range was between 30-40 years.  Thirty years was the least he could hand out to this angel-faced kid waived to adult court.

Talking with Diego afterwards he clearly did not grasp what 30 or more years would mean. Thirty years is two life times for him.  He asked me if the court might reconsider his sentence in 10 years or so? It broke my heart but I told him while it was possible, the current law and climate made it unlikely. It does no good to lie to someone going to prison. They need a firm grasp on reality to survive.

I’ve been studying dehumanizing language but maybe I haven’t been thinking broad enough.   Donald Trump recently called the Central American gang MS 13 “animals” and has pledged to eradicate them.  In my courtroom cases gang members have been called “rats.” “snakes,” “beasts,” and wild animals of all sorts. Diego was called “cold blooded” like a reptile. One of the main points David Livingstone Smith makes in his Less Than Human is that dehumanization offers “a method for counteracting inhibitions against lethal violence by excluding our victims from the human community.” 

The US incarceration Rate is off the charts

Maybe dehumanization is a good way to describe our sentencing policy.  How can judges rationalize sentences of 30, 40, or even life in prison?  They say “let the punishment fit the crime” but the US is an outlier in our use of incarceration and the length of our sentences. For example. in Norway, the longest sentence someone can get is 21 years, for any crime.  In our country, one way to rationalize locking gang members up and “throwing away the key” is to consider them “animals.”  We rationalize the violence of incarceration by dehumanizing gang members and other dark skinned offenders.

Let me tell you about Diego Melendez and how he came to be caged for 30 years.

Diego was what we call “socialized to the streets.”  His parents had been Latin King and MS 13 members. He started hanging out with gang members at age 8 and was jumped into the Maniac Latin Disciples (MLD) at 10 or 11.  I told an incredulous judge that for Diego the gang was normal. The judge was engaged with my testimony and asked me numerous questions about why such young boys join gangs? The Assistant States Attorney tried to cut me off several times, but the judge reprimanded him and told him to not “cut off a witness again.”  This white suburban judge was struggling to understand how a young kid like Diego could be in a gang and kill. This kind of judicial questioning is what you want to see as an expert witness.

The homicide, like all murders was heart-rending. Diego’s MLD leader told him and another child soldier that the Latin Kings were invading and gave them guns. Diego saw two guys running 30 or 40 yards away.  He told me he thought he fired into the ground.  Most likely he and his comrade fired in the general direction and as fate had it one of their unlucky shots hit home and killed Jonathon Quebrado.  

The States Attorney made a big deal about how after the shooting, Diego laughed. That proved to him Diego was cold blooded and a long prison term was needed to protect society from such a heartless killer. I’ve seen this response many times after a shooting. It is part of the process of dehumanization. The prohibition of killing is so strong that when you actually kill someone, you need a response that counteracts the searing emotional pain of having violated the internalized moral code: “thou shalt not kill.”  Laughing, scoffing, flashing your gang sign, or even shouting in triumph are not indications of inhumanity, but psychologically are the opposite.  Professional hit men do not celebrate a shooting, they go about their business. Diego was not a hit man, he was a child with a gun.

When Diego learned the young man who been killed was not a Latin King, but an innocent bystander, he was disconsolate. He cooperated with the prosecution which will not be helpful for him in the Illinois prison system. He talked to me about his interests and life in a suburban jail. My written statement to the court tried to bring the boy in Diego to life.

But did you know Diego Melendez loves to read? When I asked him if I could send him a book, he lighted up and said “Eclipse,” by Stephanie Meyer. Looking over my shoulder he said Meyer, with an "e" not  "a"  This isn’t my idea of a great read but Meyer’s books are intensely popular among teenagers of every race and class. As he described the plots of various books he liked, I thought sadly, “he’s just a kid.” That “kid” is there alongside of the gangster, competing for his life. 

I stayed on for the sentencing which immediately followed my testimony.  I think the judge was moved by Diego’s youth but felt constrained by the law. After he handed down a 33 1/2 year sentence I was taken aback by the Public Defender’s congratulation. “The betting pool among PDs” he said, “was 38 or 39 years. Your testimony saved him five or six years.”

These small victories may be all we can get in today’s cruel world of lengthy sentences. But they speak to the limits of the kind of work I do or the often futile efforts of Public Defenders and defense attorneys. If I do my job well, I can humanize a gang member, like Diego Melendez. But I can’t humanize a system of mass incarceration that throws away lives since they aren’t really considered to be human anyway. 

Diego’s mother had a tear drop tattoo and had been told by attorneys to get rid of it or not show up in court since it would cue “gang involvement” to the judge.  As I left, I told her to make sure to keep that tattoo and look at it everyday in the mirror and think of Diego. How can we not cry over a system that is drenched in the pain of dehumanization?

Berreby, David. 2005. Us and Them: The Science of Identity. Chicago: University of Chicago.

Fine, Gary Alan. 1987. With the boys : Little League baseball and preadolescent culture. Chicago: University of Chicago Press.

Smith, David Livingstone. 2011. Less Than Human: Why We Demean, Enslave, and Exterminate Others: Amazon Kindle.

Winning over the Other Side (Part 1 of 3)

Do you think there something wrong with me? I not only read the New York Times  and listen to NPR and Democracy Now, but I also tune into to Rush Limbaugh, check  Breitbart’s website, and, gasp!, actually follow Donald Trump’s Twitter feed. 

You might diagnose masochism but I’ve long forced myself to listen to the other side. Yes, Rush Limbaugh has helped me understand why it is so hard to counter demonization of gang members in court.  

Of course I’ve found the obvious: tens of millions of people in our country live in radically different worlds.  Within these separate bubbles, people choose their media outlets, e.g. CNN, Democracy Now, Breitbart or Fox, to reinforce their pre-existing views. We are witnessing what psychologists call confirmation bias on a grand scale. While we convince ourselves we are using reason, Benferado says “really our minds are bending the facts, sawing off inconvenient corners, and tossing away contradictory information so that everything can be fit into ready-made boxes.” Not just them, us too. And unfortunately that is also how juries work.

If you encounter a fierce partisan from “the other side” on social media or in real life, you might realize it is virtually impossible to have a rational disagreement.  Sooner of later you conclude “they must be crazy,” and if you haven’t figured it out, they think the same about you.  They look only within their frame and you look only within yours.  

What is a frame? “Frames are mental structures that shape the way we see the world”, social psychologist George Lakoff says. Think of a picture frame when you focus on what is inside and pretty much ignore what is outside of it. It is what mass media do routinely, pointing your attention to one aspect to what is a more complex picture.  Lakoff (2004, 115) argues that “frames trump facts.”  He claims you cannot win an argument with facts alone, a sober realization that also applies in the courtroom. 

Frames are psychological cousins of the “social construction of reality,” a concept introduced by Peter Berger and Thomas Luckman.  In 1967 they asked philosophically (p 13), “What is real? How is one to know?” Their sociology of knowledge explains how reality becomes “institutionalized” and legitimated through secondary socialization. Today that socialization is fueled by one’s media choice. The proliferation of alternative media has led us into polarized camps, each of us drinking different flavors of cultural Kool-Aid.  Does this mean there is no “objective” reality? No, only that reality is contested.

This, of course,  brings me back to gangs.  The reason I stopped running gang programs in Milwaukee in the early 1980s was that while I directed a successful diversion program, it had no effect on what politicians or the public thought about gangs. In short, gangs were framed as evil incarnate and what the people and public officials wanted most was more police and longer prison terms. 

My solution was to do research to “reframe” the problem.  My first study, which became People & Folks,  won a front page headline in the Dec. 12, 1986 Milwaukee Journal, reframing the gang problem as a lack of jobs.   Some good that did.  Thirty years later on August 13, 2016 in Milwaukee’s Sherman Park neighborhood where I had done much my research,  gangs and other youth rioted because of lack of jobs  and persistent police brutality.  If anything has changed, it’s been for the worse. And in 2017 the mayor still wants to hire more police. I failed to change public opinion.

More recently President Trump said illegal immigrant gangs were the cause of most of the violence in Chicago. He has threatened to “bring in the feds” unless the city gets its gang problem under control.  Simply stating the facts,  like 3/4 of homicide victims and offenders are African American, not immigrants or Chicago’s homicide rate is considerably lower than the rate in Detroit or St. Louis,  is hardly persuasive.  Logic doesn’t change the beliefs of racists on the alt-right or divert Chicago’s violence-torn black community from fears of much-too-frequent violence.

This is the problem I’ve confronted in all of my gang related trials. In court, reality also has two sides: the prosecution insists the facts prove guilt; the defense says they do not.  In a trial, both the prosecution and the defense construct theories or frames that explain and dispute the facts.  Demonizing gangs and reinforcing stereotypes is a winning strategy for the prosecution, constructing frames so hard the facts will bounce off.  Thus my job as expert witness is to use research to combat stereotypes and try to reach a judge or jury.  But if disputing the facts is insufficient, what rational tools do we have to combat stereotypes?

In a trial, the defense goal is often to win over just one juror to not convict, which is much harder than it might seem. In the court of public opinion, we are looking for ways to win over millions of people who may be open to not getting on the Trump train or might want reasons to duck out.  My work in court exemplifies this problem of the limits of rationality. In my next two blogs I’d like to outline a few of my ideas on the power of stereotypes by applying concepts from the works of George Lakoff and Daniel Kahneman. Coming next week:  Two Opposed Ways of Thinking.

Benferado, Adam. 2015. Unfair: The New Science of Criminal Injustice. New York: Crown Publishers.

Berger, Peter L., and Thomas Luckman. 1967. The Social Construction of Reality. Garden City, New York: Doubleday & Company Inc. Anchor Books.

Lakoff, George.  2004. Don't think of an elephant! : know your values and frame the debate : the essential guide for progressives. White River Junction, Vt.: Chelsea Green Pub. Co.

Trump, Deportations, and “Gang Members”

Latino youth beware!  You may be a gang member and not even know it!  And no, you might not be able to dispute that label if it is made by ICE. Welcome to America, or rather….. Farewell.

President Trump’s Executive Order on Immigration and his Implementation Memo dated 2/20/17 are aimed to “take the shackles off” of the nation’s immigration enforcers. According to Sean Spicer, the EO makes it clear that “the No. 1 priority is that people who pose a threat to our country are immediately dealt with” (New York Times  2/21/17). Among others, this means gangs, or at least people ICE decides are gang members. 

And that’s the rub. Bureaucratically law enforcement has a process to officially label a youth a “gang member.” There are checklists like this one:

However the judgements are highly subjective. In the recent highly publicized case of Ramirez Medina, ICE agents apparently mis-identified a tattoo as “gang related” and  although Ramirez was a DACA protected Dreamer, held him as a gang member and began deportation proceedings.

Law enforcement agencies have a long history of stereotyping and mis-labeling minority youth as gang members. In  Los Angeles, California Supreme Court Justice Chin questioned official gang identifiers, pointing out that “the City would consider a person to be a member of a Sureño gang if, for example, that person on two occasions wore baggy pants, blue clothes, or 'Los Angeles Raiders' garments.” In Denver police created a data base that classified an astounding two out of every three black youth as gang members. 

As one law review article put it, police officers and ICE agents already “exercise virtually unchecked discretion” when it come to gangs.  This means racial stereotypes can be given free reign.  A deportation case I consulted in demonstrates how dangerous stereotypes plus  ICE's “unchecked discretion” can be.  For obvious reasons I changed the name of my client and masked some of the circumstances.

Dante Menzies was a 15 year old high school student. He was a rebel, and he and two friends formed a group called “Cholo or Die.”  They spray painted it on walls and had hats made with “COD” letters. One of Dante’s friends got into a tussle with a teacher.  Dante intervened and punches were thrown. Dante was arrested, and then the astounding happened.

The local police claimed out of the blue that Dante was a “Sureño,” and COD, Dante's gang of three,  was a chapter of MS-13.  He was turned over to Homeland Security and subject to deportation. His lawyer called me and I interviewed Dante via Skype, reviewed the documents, and talked to local police officials. My question was simple: how did the officer determine Dante was a MS-13 member? 

The checklist above is from Dante’s case. Here is the evidence: the graffiti on buildings was Dante and his two friends writing “COD” on the school bathroom walls.  Dante apparently was determined to be MS-13 because he wore the color blue..... and get this, the only blue he had on were his blue jeans. The arrest for a violent crime was the juvenile adjudication of delinquency in the scuffle which resulted in a couple of months in detention. 

The police department refused to explain what “correspondence" named Dante a gang member.   My guess is that the local Gang Investigators Association sent some background information or this referred to memos within the file between local officers.  Police departments or ICE do not have to disclose “gang intelligence” information as with other evidence subject to discovery. In other words, like in this case, ICE can allege gang membership as a basis to deport and never reveal how they drew that conclusion.

I have no way to know if 15 year old Dante was actually a secret MS-13 member.  But the evidence the police presented led me to conclude that Dante’s “MS-13” membership was most likely made up by the officer so deportation proceedings could begin. It was a false generalization that was necessary to justify punishing Dante, as in "Aren’t most of those Mexican kids gang members anyway?"  Why not just make up the evidence — who will know? 

Well the attorney called their bluff and I made an aggressive case that there was no evidence to even assume Dante was a MS-13 member.  He was spared deportation but not every youthful immigrant will enjoy such advantages.

I think Sean Spicer got it right. Trump’s order is meant to “take the shackles off” ICE agents, to give them even greater discretion to act on their hunches and biases in order get “them” out of the country. The facts be damned.

Gang members, along with Muslims, are the quintessential “them” to the virtuous “us” of the all-white alt-right.  Being in a gang is not illegal.....yet.  But even the allegation of gang membership puts Latino youth at risk of deportation.  This over-broad net of ICE predates Trump and former President Obama can't escape culpability. The fight against demonization in all its forms is an on-going struggle for us all.

Hufstader, Rebecca A. 2015. "Immigration reliance on gang databases: Unchecked discretion and undesirable consequences." New York University Law Review 90:671-709.

Leyton, Stacey. 2003. "The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases." in Crime Control 

            and Social Justice: The Delicate Balance., edited by Darnell Felix  Hawkins, Samuel L. Myers, Randolph N. Stone,. Westport, CN: Greenwood Publishing Group.

Trumping the Gang Problem

Donald Trump has a solution for this country’s gang problem. He says strong leaders, like himself or certain police chiefs,  could solve our country’s gang problem if only their hands were untied. Here are some of his thoughts on gangs:  

“We’re going to get rid of those gang members so fast your head will spin”…..“One of the first things I’m going to do is get rid of those gang members”….. Chicago police Superintendent Garry McCarthy “is a phenomenal guy.  He could stop this if we allowed him to stop it. … Believe me.”

Well I don’t believe him one bit. When McCarthy became the CPD police chief, he vowed to “eradicate” the Maniac Latin Disciples. Even his own officers made fun of him on that one.   I’ve been doing research and working with gangs for more than thirty years. Gangs aren’t going away no matter what we do.  With high levels of poverty, inequality, and racism,  gangs are now a permanent fixture in American’s urban landscape. 

I’ve concluded a bigger problem than gangs is our poisonous culture of demonization.  Trump exemplifies this demonization, but he is far from alone. Any trip to a courtroom where a gang member is on trial will reveal even more outrageous comments from prosecutors. For example, in one Georgia court where two gang members were on trial, the prosecutor told the jury that the name of the gang, “Folks” stood for “Followers of Our Lord King Satan.” Let’s see: young, black, male, gang members, accused of murder and being devil worshippers to boot! It didn’t take long for the all white jury to come back with the death penalty. 

I wasn’t in the courtroom for the trial, but years later I was called in on a habeas corpus hearing on the basis that the defendants had received ineffective counsel. I brought along a letter from a former Chicago gang squad officer saying how ridiculous the prosecution's “Folks” assertion was.  The death penalty still hovers over these two young men as the courts weigh the fate of the habeas petition. But demonization is standard fare for prosecuting gangs.

Rather than seeing the gang problem as having complex structural, cultural, and situational roots, gangs are essentialized by the media, politicians, police, and prosecutors as little more than evil cartoon characters.  And if gangs are evil, Trump’s final solution might be similar to Kurtz's in Conrad’s  Heart of Darkness:  “Exterminate All the Brutes.”  You can’t reform evil so why try? Destroy that which you fear! Deport! Incarcerate!  Annihilate!  Let’s not take time to think, let's stamp them out — now!

Life is not so simple and never was.  In my new book, The In$ane Chicago Way,  I look at the darkest side of Chicago gangs, their horrific wars, ties to organized crime, and widespread corruption of police.  In my other books I was focused on debunking gang stereotypes, but in this one I narrate the story of gang leaders bent head over heels on grabbing power and money.  I describe police who became drug kingpins in an unholy alliance with those gang chiefs.  But my message in In$ane is familiar: “Gangs are not one thing.” We need to think first and then react. 

The gang leaders who rushed to war in the 1990s number at most in the dozens and are mainly out of the picture now. Professional hitmen exist but it is hard to be a hitman and most don't last long.  The current fracturing of gangs in Chicago in part is a healthy rebellion of young gang members who were sent to kill, die, or spend their lives in jail by power tripping “OGs.”  We have a unique opportunity now to win youth away from gang life and enlist them in the struggle for social change. The #BlackLivesMatter movement represents the most exciting possibility in generations for a social movement that includes the streets. We should all join in.

But the 2016 elections are a dangerous time for demonization.  Trump has realized “law and order” has been a winning policy for US voters at least since Nixon.  Mass incarceration, stepped up deportations, and wars against gangs and drugs have defined both Republican and Democratic administrations for almost 50 years.  Dare I suggest we have failed to learn the lessons of the rise of Hitler and Mussolini? Have we forgotten the KKK and their terrorist lynchings? Do we still remember the names of Emmett Till, Michael Brown, and Milwaukee's Dontre Hamilton?  Have we forgotten where unrestrained scapegoating can lead?