Reform Requires a Complete Picture of George Floyd

I don’t need to know much about George Floyd to be horrified by his murder. I can’t shake the image of Floyd calling out to his dead mother as he was strangled. But if we are holding up Floyd as a rallying cry for reform, then we do need to know about him. The information we need about Floyd is how his life was affected by the criminal justice system. The most important fact is that he was murdered by a policeman. But the rest of his life can teach us important things too, and might make us a little bit uncomfortable.

I recently read a New York Times article about the life of George Floyd. It went into granular detail about his exploits in sports, at work, and in religion. We found out about why he moved to Minneapolis from Houston. We found out about his propensity to hug people. We heard from an NBA star that he physically resembled. He had never been in a fight. He told jokes to cheer up his teammates after a loss. But the article totally passed over his involvement in the criminal justice system. This left me puzzled, since his involvement in the criminal justice system is the reason for his notoriety. Moreover, he is being held up as an example of why we need to reform the criminal justice system. Given that, readers need a complete picture.

The New York Times Passes Over Floyd’s Criminal History

But he returned to Texas after a couple of years, and lost nearly a decade to arrests and incarcerations on mostly drug-related offenses. By the time he left his hometown for good a few years ago, moving 1,200 miles to Minneapolis for work, he was ready for a fresh start…

For about a decade starting in his early 20s, Mr. Floyd had a string of arrests in Houston, according to court and police records. One of those arrests, for a $10 drug deal in 2004, cost him 10 months in a state jail.

Here’s a summary from the Daily Mail. “Floyd was sentenced to 10 months in jail for having less than one gram of cocaine in a December 2005 arrest. Ok, so far the Times is doing fine.  “He had previously been sentenced to eight months for the same offense, stemming from an October 2002 arrest.” The Times omitted this. “Floyd was arrested in 2002 for criminal trespassing and served 30 days in jail.” Omitted. “He had another stint for a theft in August 1998.” Also omitted. What is lost in these omissions is the implication that Floyd might have been a cocaine addict in the early 2000s.

The New York Times Omits the Facts of Floyd’s 2007 Armed Robbery

This is the most frustrating part: “Four years later, Mr. Floyd pleaded guilty to aggravated robbery with a deadly weapon and spent four years in prison.” That’s the only thing the article said. They complete omit what actually happened. Court documents detail the facts of the assault:

Here’s The Daily Mail again. Compare the detail provided here with the detail provided by the Times.

“Floyd pleaded guilty to the robbery where another suspect posed as a worker for the local water department, wearing a blue uniform in an attempt to gain access to the woman’s home… But when the woman opened the door, she realized he was not with the water department and attempted to close the door, leading to a struggle. At that time, a Ford Explorer pulled up to the home and five other males exited the car and went up to the front door. The report states the largest of the group, who the victim later identified as Floyd, ‘forced his way inside the residence, placed a pistol against the complainant’s abdomen, and forced her into the living room area of the residence. ‘This large suspect then proceeded to search the residence while another armed suspect guarded the complainant, who was struck in the head and sides by this second armed suspect with his pistol while she screamed for help.’ Not finding any drugs or money at the house, the men took jewelry and the woman’s cell phone and fled in their car. A neighbor who witnessed the robbery took down the car’s license plate number. Later, police tracked down the car and found Floyd behind the wheel. He was later identified by the woman as the large suspect who placed a gun against her stomach and forced her into her living room, the document states. 

(Emphasis added.)

They New York Times Omits the Fact that Floyd Was High When He Was Killed

Floyd went to prison for five years. He got out in 2014, and remained conviction-free until his death. He did not remain crime-free, as we know from the medical examiner’s report. He had fentanyl and methamphetamine in his system. These facts, without Floyd’s history, are interesting but not useful. But taken together, Floyd seems to be a man whose life was derailed by drug use. That’s an important thing for us to remember as we decide how to reform our laws. But the New York Times did not include the facts about his drug use in their biographical article.

Why Does This Matter? Murder is Murder, Right?

None of these things excuse the officer’s conduct. I hope they are kept out of the criminal trial, since they are inflammatory and irrelevant there. But they are relevant for people trying to reform the law. Could we have saved George Floyd by keeping him off of drugs? That is a question that would not have occurred to a reader of the Times.

The most important point is that any discussion of criminal justice reform will have to grapple with the idea that none of the people involved in the system are perfect. Many, like Floyd, are lifelong criminals who never managed to “get out” of the street. Their problems are compounded by drug use, mental health issues, and many other issues that can’t all be solved by the police. We have to understand that the people involved in the system might not be people that we would have over for dinner. Nonetheless, they don’t deserve to be treated the way Floyd was treated. We should think of Floyd as a martyr, but not as a hero, because the truth matters.

By failing to include a complete picture, the Times robs us of the ability to decide for ourselves what to make of George Floyd. They did not think this information was relevant to the public, even though they were publishing an article on his life. I can only speculate as to why they left this out. Many people assign political motives to the Times. Were they trying to make George Floyd seem like a better man, so that his death would seem more outrageous, and more people would read their coverage? Were they trying to downplay his drug addiction because they are politically hostile to drug enforcement? It’s all speculation. But I prefer to have all the facts, and I’m disappointed that I couldn’t get them from the Times.

Notes

Here’s another summary of Floyd’s record from the Sun.

Most people (on Twitter) realize that Floyd was not a hero. But here’s a couple of people who don’t.

Nothing Works Except Castration

Robert Martinson was a socialist during his life and would be a reformer if he were alive today. He ran for mayor of Berkeley as a socialist. He was active in liberal causes, and was even arrested as a freedom rider in the South in the 1960s.

He spent over a month in Mississippi jails, and wrote about his experience. His incarceration inspired him to study prisons and inmates as a professor later in life. In 1966, the New York State Governor’s Commission on Criminal Offenders commissioned a study by Martinson. He conducted it with two other academics, Douglas Lipton and Judith Wilks. They were tasked with determining an effective way to rehabilitate prisoners by reviewing 231 studies on the subject. The studies were conducted between 1945 and 1967.

Martinson reviewed:

  1. Educational and vocational training;
  2. Individual counseling;
  3. Group counseling;
  4. Transforming the institutional environment;
  5. Reducing sentences;
  6. Decarceration;
  7. Psychotherapy;
  8. Probation or parole instead of prison;
  9. Intensive supervision;
  10. Treatment in the community; and
  11. Medical treatment.

Once his review was complete, Martinson concluded that government had not found a way to rehabilitate prisoners. “[T]he represent array of correctional treatments has no appreciable effect – positive or negative – on rates of recidivism of convicted offenders.” In other words, none of the methods used in the 231 studies he reviewed were successful. He concluded, “rehabilitative efforts that have been reported so far have no appreciable effect on recidivism.”

He concluded that none of these work. He has “very little reason to hope that we have in fact found a sure way of reducing recidivism through rehabilitation.”

Martinson and his colleagues submitted a draft report to the Commission. The coauthors were reluctant to come out and say what the results of the report were. Martinson was not. “I undertook, on my own responsibility, to supply what the authors of this work could not or would not supply – a conclusion.” The Commission, whose purpose was to come up with a rehabilitation program in New York, was not happy to hear that they were wasting their time. His conclusion was suppressed. It later become available after an unrelated court case.

His conclusion caused a sensation and made him a public figure in the mid-1970s. “The press has no time for scientific quibbling and got to the heart of then matter better than I did.” Media asked, “is rehabilitation a waste of time?” His study became known as the “Nothing Works” study. Martinson himself often said that treatment added to the networks of criminal justice is “impotent.” James Q. Wilson’s thinking on the subject captured the moment:

It requires not merely optimistic but heroic assumptions about the nature of man to lead one to suppose that a person, finally sentenced after (in most cases) many brushes with the law, and having devoted a good part of his youth and young adulthood to misbehavior of every sort, should, by either the solemnity of prison or the skillfulness of a counselor, come to see the error of his ways and to experience a transformation of his character… We have learned how difficult it is by governmental means to improve the educational attainments of children or to restore stability and affection to the family, and in these cases we are often working with willing subjects in moments of admitted need. Criminal rehabilitation requires producing equivalent changes in unwilling subjects under conditions of duress or indifference.

(James Q. Wilson, Thinking About Crime, (rev. ed. 1980), at Ch. 9, p. 151.)

Wilson and Martinson were not alone in their conclusions. Other concurring scholars include R.G. Hood, Walter C. Bailey, and Leslie Wilkins. Wilson (and these scholars) point out that, although the press described the finding as “nothing works,” it would be more accurate to say that nobody has proved that “something works.” There have been many hints that some reductions in criminality for some kinds of offenders under some circumstances are possible. But no one has discovered a method that is consistent and effective enough to base public policy on. In fact, Wilson’s book presents evidence that treatment may actually increase the criminality of certain offenders. (Wilson, supra, at p. 157.)

Martinson’s conclusion is still controversial today. In recent years, reformers and the public at large have reached a consensus that rehabilitation should be one of – if not the only – goal of our prison system. The California Department of Corrections added “and Rehabilitation” into its name. But Martinson suggests that this movement is built on wishful thinking. The recent political consensus that we should rehabilitate not incarcerate is based on the assumption that we can rehabilitate. But what if that is not true? Martinson’s study has the potential to upend our politics on prisoners, and to radically change the way we treat them.

Castration

There was a strange finding amid Martinson’s bleak conclusions. “One type of surgery does seem to be highly successful at reducing recidivism.” Castration works. Not chemical castration: a Danish study on this subject, which was paired in treatment with therapy, showed that it was ineffective. Actual castration, however, reduced the rate at which a criminal committed additional sex crimes by 90%, and all crimes by 50%. Interestingly, castrated criminals still committed sex crimes 3.5% of the time. Martinson observed, “where there’s a will, apparently there’s a way.”

Does Something Work?

Martinson partially reversed himself later in life, writing “contrary to my previous position, some treatment programs do have an appreciable effect on recidivism. “[N]o treatment program now used in criminal justice is inherently either substantially helpful or harmful. The critical fact seems to be the conditions under which the program is delivered. Specifically, some programs work for prisoners but not parolees, work in group homes but not in juvenile detention, etc.”

However, in order to arrive at the conclusion that rehabilitation is possible, Martinson had to relax his standards. He reviewed less rigorous studies with fewer people. Importantly, he gave up understanding causality: “we reject this perspective as premature and focus on uncovering patterns which can be of use to policymakers in choosing among available treatment programs.” Here he seems to be saying that he cannot determine whether rehabilitation caused decreases in recidivism, despite his early statement that the programs have an “appreciable effect on recidivism.”

Notes

Martinson committed suicide in 1979 by jumping from his 15th floor Manhattan apartment, while his teenage son looked on.

“Consider the work of God: for who can make that straight, which he hath made crooked?” (Ecclesiastes 7:13.) “That which is crooked cannot be made straight: and that which is wanting cannot be numbered.” (Ecclesiastes 1:15.)

Jarvious Cotton is a Murderer

“Today, Jarvious Cotton cannot vote because he, like so many black men in the United States, has been labeled a felon and is currently on parole.”  (Michelle Alexander, The New Jim Crow (2010) at p. 1.)  That is a frustrating and misleading way to start a frustrating and misleading book.  And the worst part isn’t the unnecessary use of the passive voice (Cotton “has been labeled”), and it isn’t the fact that a parolee was denied voting rights.  I hadn’t even thought about the latter much, before picking up this book.  No, it’s Alexander’s characterization of Cotton as having lost his voting rights when someone “labeled” him a felon.

Cotton was not labeled a felon by the establishment, “The Man,” a racist cop, or some other bogeyman.  He committed a felony.  No one did anything to him.  He did it to himself.  He broke the rules and got caught.  Alexander tries to take the focus off Cotton, as if losing his voting rights happened to him in the same way that you happen to get rained on, or in the same way that you happen to catch a cold.  That is just not the case, and it’s a dishonest way to start your book.

What Jarvious Cotton Did to Lose His Voting Rights.  

On March 12, 1982, Robert Irby was with some friends outside the city auditorium in Natchez, Mississippi.  Irby was a popular 17-year-old student football star and the son of a prominent banker.  The Natchez Pilgrimage tableaux was being held.  Irby and his friends were approached by Jarvious Cotton and Terry Johnson.  The two men were friends. “When we was hanging together,” Johnson said, “I put my education with his street knowledge.” Johnson was 15 at the time. He said he was high on marijuana and codeine.

Cotton and Johnson brandished a gun and demanded money.  The men got about $21 from Irby and his friends, and turned to run away.  Irby ran after them.  Cotton turned around and shot Irby dead. According to Johnson, Cotton fired three times. The first two shots hit Irby in the legs. The fatal shot hit Irby below the ear. Cotton said, “He wants to be a hero. There’s another dead soldier.”

Cotton and Johnson fled to a car. The getaway driver was a third man, Anthony Gerald Jackson, who drove them out of state to Louisiana.

Jarvious Cotton’s mother Audrey had ten children. Jarvious was the fourth. He used to run away constantly between the ages of 7-12. He had his first brush with the law at age 17, when he was convicted of burglary. After Cotton killed Irby, he was later caught and held awaiting trial at the Adams County Correctional Center, which is now a private prison.  His mother helped him escape from his cell. He fled Mississippi, but she remained and was later convicted herself, as an accessory to his crime.

He remained a fugitive for five years until he was apprehended almost by accident in New York.  Specifically, he was arrested for marijuana possession¹ in a New York subway.  Officers discovered that he was wanted for murder in Mississippi.

Once Jarvious Cotton was identified as a wanted murderer, Mississippi began proceedings to extradite him.  It may surprise you to learn that the Legal Aid Society of Brooklyn fought on behalf of Cotton to prevent his extradition.  They fought extradition for almost a year before the New York Court of Appeals unanimously held that Cotton must be returned to Mississippi.  Some sources say he was convicted of murder by a jury of his peers. Others say he pled guilty in exchange for a life sentence with the possibility of parole.

Alexander Used Jarvious Cotton to Mislead You.

Cotton lost his right to vote because he killed a teenager.  He did not lose his right to vote because the system “labeled” him a felon.  The New Yorker has the same problem with Alexander’s opening.  The Boston Review sums up my feelings nicely.

“Alexander’s passive construction—Cotton “has been labeled a felon”—suggests that he had no choice in the matter. The compelling arguments against felon disenfranchisement would lose none of their force if Alexander were to acknowledge Cotton’s crime, but she never does.”

Alexander’s language has actually misled people.  Even though we know Cotton was convicted of murder, college students who read this book do not.  For example, students at Cal. State Long Beach were asked to read the introduction and write about it on a message board.  One of them said, “Lastly is Jarvious who is also denied the right to vote because he is on parole for being charged with a drug conviction.”  Nope, he killed a teenager.

If an author cannot be trusted in small things, she probably cannot be trusted in large things either.  If Alexander was willing to try to pass of Cotton as a victim of the system rather than a the worst kind of criminal, what other things is she trying to pass off?  Alexander is a loud voice for sentencing reform.  She should not discredit the arguments of the movement by deceiving her audience about the facts.

Notes and Annotations

Why can’t felons vote? There are good reasons for this rule. In a nutshell, if you aren’t willing to follow the law, you shouldn’t get to make the law for everyone else.

Cotton will vote when he’s off parole: Jarvious Cotton served his time for murder and was released on parole to Adams County Mississippi.  Mississippi denies voting rights to parolees.  But Cotton will regain his voting rights once he completes his term of parole.

California has the same rule as Mississippi: a felon is stripped of his right to vote while she is incarcerated and on parole.  But when the term of parole is complete, her voting rights are returned. People incarcerated in county jail, which includes felons, can vote.

Here’s a newspaper article discussing the case.

Here’s a thoughtful perspective on Alexander’s use of Jarvious Cotton in her argument that the criminal justice system has created a racial case.  Jarvious Cotton chose to commit a crime, whereas slaves and southern blacks during Jim Crow did not choose to be victimized and oppressed.

You can read court opinions about Cotton’s extradition that include the facts of his case. (See People ex rel. Neufeld on Behalf of Cotton v. Commissioner of New York City Dept. of Correction (1988) 71 N.Y. 2d 881 [describing Cotton as an accessory].)

After his conviction, Cotton became a jailhouse lawyer. He sued Mississippi prison officials asking for money to compensate him for having to prove his legal mail did not contain drugs. He sued over a leaky roof, and over the decision to deny him parole. He brought so many bogus suits that the Fifth Circuit barred him from filing more. You can read a detailed account of his life after conviction here.

¹To me, the fact that Cotton was apprehended for possession of marijuana is the most ironic part of his story.  Alexander argues that enforcement of drug laws should be ended, because they are used to create a new racial caste system.  Jarvious Cotton shows that real life does not fit this argument.  Or we can go farther; Alexander’s own examples don’t fit this argument.  Because in Jarvious Cotton’s case, enforcement of a minor drug law led to the apprehension of a murderer.  We could speculate that since Cotton was apprehended on the subway, that he may have been arrested as part of “stop and frisk” enforcement, or broken windows policing.  In other words, the enforcement practices that Alexander criticizes successfully identified and arrested a murderer, an extremely positive result.  And she still turned around and used Cotton as an example in her book, secure in the knowledge that only a tiny number of people would ever care enough to dig deeper.

Dinosaurs

The California Courts use TCIS to manage their cases.  I don’t know what TCIS stands for, and by the look of it, TCIS has been around so long that no one else does either.  Ok fine, I googled it, because if you can’t rely on this blog for solid information, then where can you go?  TCIS stands for “Tired Computers Impede Success” “Trial Court Information System.”

TCIS was first put into use back when there were Municipal Courts; the Superior Court adopted it in 1993.  It doesn’t look like it has changed at all since then.  It features the lovely black background and unicode white text that home computer enthusiasts came to love when making their own 20-sided dice programs back in the floppy disc age.

Upgrades were once planned.  In 2002, the California Administrative Office of the Courts started the Second-Generation Electronic Filing Specification project.  It was designed to provide the trial courts with a single, statewide case management system to replace 70 different individual case systems in use among California Courts.  The cost was estimated at 260 million dollars.  Over the next ten years, the Courts spent $2 billion dollars on it.  This money went to “primary vendor” Deloitte Consulting.  In 2012, a consulted prepared a report (at a cost of $200,000) asserting that a new system was ready to implement.  The project was abandoned.  According to a report by the independent auditing firm of Grant Thornton, LLP, estimates for deployment of CCMS V4 to 11 courts would be $343 million for one-time and supporting costs through fiscal year 2020-2021.

As of the time of this writing, the new system still hasn’t been implemented.  Many counties in California have turned to their own solutions.  Indeed, pre-made case management systems already exist with no development cost.  Others have not.

The problem of physical files is especially acute in the common situation where a defendant has more than one active case at a time.  For example, a defendant may be charged with robbery in one court location, and be on probation for burglary in another.  While both cases are pending, a new misdemeanor drug possession case may be filed in a third court.  Commonly, lawyers and judges in two of the cases will end up waiting on the third to resolve.  Sometimes, the lawyers assigned to each case end up waiting on the others, each assuming the others will take the lead.  All the case files should be ordered to one location.  But this doesn’t always happen.  Indeed, some courts flatly refuse to release their case files.

Lawyers in many counties are still analog: paper clips, copy machines, binder transcripts, and writing on file folders.  When the judge issues an order, he writes it in the file.  The court reporter writes it down.  The court clerk writes up the minute order.  The defense attorney writes it down, and the district attorney writes it down.  Ineffeciency and waste result.  Back in the office, legal assistants spend their time pulling and replacing files.  They pull and replace the calendar for each day.  They do this for each courtroom covered by the office.  They pull and replace for defendants picked up on bench warrants.  They pull and replace for defendants that walk in without a scheduled hearing.  And when a prosecutor, paralegal, or victim advocate needs to work up a file, they pull it and replace it when she’s done.

Files get lost.  Handwriting can be illegible.  Things fall out of the files, like discs with video evidence, probation reports, amended complaints.  The same problems vex court files.  The court file may be missing a probation report: a prerequisite for sentencing.  Probation itself must physically copy the police report and other documents from the files in order to prepare these reports.  That means they have to actually come to the courthouse and pick them up.

The files themselves take up a huge amount of space.  Each individual office at the District Attorney has files.  And the legal assistants must also store even more files in a central repository.  There are so many files that only the recent ones can be stored.  Even these take up enough space to fit several additional employees, or any number of other fruitful uses.  For example, the space could be converted to a waiting room for victims and witnesses.  Or it could be used as a law library.

All this waste an ineffeciency would be a scandal in any organization.  But it’s a particular scandal in an organization paid for by tax money from people in the community it is supposed to serve.  As trustees of the money of others, those working in government have a duty not to waste what has been dearly given.  And if that weren’t enough, the criminal justice system is chronically understaffed, with real detrimental outcomes for victims and the community.  Obviously, part of the reason that they are understaffed is that employees spend time managing physical files that they should be spending doing substantive work.

Annotations

A long white paper from the Orange County District Attorney’s Office  on “case packaging” to eliminate the problem of multiple physical case files in different locations with different judges.  .