Mississippi denies Jeffrey Havards appeal

The Mississippi Supreme Court has denied – for the second time – a post-conviction appeal from convicted murderer Jeffrey Keith Havard.

The court said Thursday that Havard had raised no new issues that deserved consideration. Havard’s first post-conviction petition was denied in 2008.

Havard was convicted in 2002 of capital murder and sentenced to death in Adams County for killing a 6-month-old girl.

Inmates use a post-conviction petition to argue they have found new evidence – or a possible constitutional issue – that could persuade a court to order a new trial.

Havard was convicted of killing Chloe Madison Britt of Ferriday, La., the daughter of his girlfriend. Prosecutors say the infant’s injuries were consistent with shaken baby syndrome, but she also had suffered from sexual abuse.


Two new executions set for Alabama Death Row inmates








The Alabama Supreme Court has set a new date for Tommy Arthur’s execution to be on March29, 2012. This is the fifth time his execution date has been set. Arthur, now 70, was convicted of the murder-for-hire killing of Troy Wicker, businessman of Muscle Shoals, Alabama in 1982 and was placed on Death Row in 1983.

The story of Arthur is rather bizarre. It began on February 1, 1982. Muscle Shoals, Alabama police received an urgent call to the home of Troy and Judy Wicker. When they arrived, they found Troy Wicker dead in his bed and found 4 expended .22 caliber cartridge shells on his bed. Judy Wicker was lying on the floor with traces of blood on her head while her sister, Teresa Rowland knelt beside her.

Judy told police that she had driven the children to school and upon returning home she found a black man there who had shot her husband and that he knocked her unconscious and raped her.

However, she was subsequently charged with her husband’s murder and sentenced to life in prison. Tommy Arthur was implicated as the hit man, but the case was not certain without the testimony of Judy Wicker. So a deal was made with Wicker for an early release for here testimony.

Wicker explained that her husband Troy was physically violent with her, and that Rowland and Troy often argued when Troy threatened to turn Rowland in to the police for the arson on her home which he had committed for her.

She also testified that she had known Arthur since they were both young and worked at Tidwell Homes. She revealed that she, Rowland, and Rowland’s boyfriend, Theron McKinney had discussed killing Troy beginning in early 1981.

Arthur was hired to kill Troy and Judy testified that when Arthur went in to the house, she heard a shot and that he then hit her and knocked out some teeth and lacerated her lip. Much more evidence was shown at his trial. He was convicted and sentenced to death. After over 25 years on death row and numerous appeals, he has had 5 dates set for his execution. Barring any unexpected delays or stays, however, it is highly likely that he will be executed this time on March 29, 2012.

The other death row inmate who’s execution was set, is that of Carey Dale Grayson which is now set for April 12, 2012.

Grayson, who was 19 years old in 1994, with 3 other teenagers was traveling on Interstate 59 in north Alabama when he picked up a lady hitchhiker. Vicki DeBlieux, 37 was enroute from Chattanooga, Tennessee to West Monroe, Louisiana to see hr mother there. They promised to take her to her mother’s home, but rather drove to a wooded area where they attempted to have sexual relations with her. When she rebuffed their sexual advances, they beat her with beer bottles, kicked and stomped her and threw her over a cliff. Later, three returned and disemboweled her and cut off her fingers to try and hide her identification. They kept the fingers as souvenirs. They were soon caught when the youngest one began showing others one of her fingers. Grayson and one other were sentenced to death and the other two were given life imprisonment. Grayson is now due to be executed on April 18.

Executed inmates last week diary








In 1991, Robert Charles Towery concocted a plan: with his friend Randy Barker, he would kill a man who had lent him money in the past, and rob the man’s house of its jewellery and cash.
When the body of Mark Jones was found, a witness came forward to say he had seen the men dump Jones’ car. Barker, who testified against Towery, was given 10 years. Towery was sentenced to death.
A day after Towery’s execution at the Arizona state prison in Florence, his attorney has released letters the killer wrote to him from Death Row during his last month alive.
They give a chilling insight into the thoughts of a man locked up for 20 years – from the ‘humiliating’ strip searches to his first taste of orange juice in years and his first sighting of an iPhone.
Robert Charles Towery
Robert Charles Towery
Inmate: Robert Charles Towery, 47, was executed on Thursday for the 1991 murder and robbery of Mark Jones. While on death row, he wrote daily to his attorney, who has released the chilling letters
They show his affection for cellmate Robert Moormann, a killer prosecutors claimed was mentally-disabled, and who Towery saw as a gentle man who did not understand his fate.
The letters – written and posted daily to his attorney Dale Baich – also reveal the steps he took to prepare for his death, including rehearsing his final words and the journey to his holding cell.
Excerpts of the letters, seen by the Arizona Republic, outline the daily torments Towery suffered, such as the discomfort he felt around female guards.
‘They stripped me out with a female officer present,’ he wrote on February 3. ‘Now, personally, I’m not the shy type, but having a female officer on death watch is just one more humiliation.’
Later that month, he added: ‘WORST NIGHT YET! We have a female on watch! Which I think is completely inappropriate! I don’t have an issue with women working the prison, or anywhere.
‘But, in a situation like this when you can’t go to the bathroom without someone being 10 feet away staring at you, it’s just not right.’
Despite the occasional irritation, Towery is upbeat and good-natured – a seemingly far cry from the man capable of committing murder two decades earlier.
Chamber: Towery was executed in Arizona State Prison, pictured. The day before his death, he wrote of his excitement at being given orange juice and trousers with a zip and button

Chamber: Towery was executed in Arizona State Prison, pictured. The day before his death, he wrote of his excitement at being given orange juice and trousers with a zip and button
He expresses his excitement at being given a pair of trousers with a button and zip, and finds humour in the fact that his prison guards fall asleep, with him watching them.
‘Good for them!’ he wrote on February 15. ‘I’m sure this has to be stressful to them. So a moment’s relaxation is well earned. I also enjoy the irony… Exactly who is watching whom?’


In the weeks leading up to their crime in 1991, Robert Towery and Randy Barker discussed robbing philanthropist Mark Jones because Towery – who had borrowed money from Jones in the past – knew he had cash.
According to Barker’s testimony, the men went to Jones’s home claiming their car had broken down and they needed to use his phone.
Towery then pulled a gun out while Barker handcuffed him, before the duo loaded Jones’ car with electronics, jewelery, credit cards and cash.
They marched him to his bedroom at gunpoint where Towery attempted to inject the victim’s arm with battery acid.
When that did not work, he strangled him with plastic ties, making two separate nooses. Barker hovered over the men with a gun in his hand, watching as Towery committed the murder.
Jones’ body was found the next day. The men were caught when a security guard said he had seen them dump the vehicle at an apartment complex.
As part of a plea deal for testifying against Towery, Barker received just ten years and was released in 2001. Towery was sentenced to death and appeals were rejecte
In an earlier letter, he becomes excited about his relatively comfortably surroundings.
‘One more observation, and for me, it’s a good one!!’ he writes. ‘I have not seen a single roach, water bug, scorpion, stink beetle or spider. Woo-hoo!! Over on the other side I lived next to the rec pen and I went on Safari daily!’
Yet he is unable to stay positive while on the subject of the fate of his cellmate Robert Moormann.
Moormann was executed by lethal injection after kidnapping and sexually abusing an eight-year-old girl and killing and dismembering his adoptive mother, whom had allegedly abused him as a boy.
His lawyers had argued that Moormann had the mental capacity of a small child.
In a letter to Baich on February 12, Towery likened Moormann to Lenny from John Steinbeck’s book Of Mice and Men, the mentally handicapped gentle giant who does not understand the consequences of his murderous actions.
An inmate can not be put to death if they have an IQ lower than 70 in Arizona law. His defense claimed his was between 70 and 94, while a doctor for the prosecution said he had an IQ of 94.
‘Bob is one of the meekest, polite and quiet man I have ever met. I truly believe they are committing a crime against nature if they execute him,’ Towery wrote.
‘He knows he committed a horrific crime. I’m not a doctor, but I can tell you from knowing Bob for nearly 20 years now, he doesn’t really get it.
‘He is guilty, no doubt, but there is no way he is culpable in it. His stepmother and what she did to him broke him in a way that made him a man-child.’
Final journey: Towery was taken to the main prison, pictured, by a group of guards the night before his death. He wrote that it was 'cool' to watch one officer 'with what I assume was an iPhone'

Final journey: Towery was taken to the main prison, pictured, by a group of guards the night before his death. He wrote that it was ‘cool’ to watch one officer ‘with what I assume was an iPhone’
On the day Moormann was executed, Towery simply wrote: ‘Bob is gone. May God forgive them.’
The following week, Towery began preparing for his own death. On March 7, Towery was taken to Housing Unit 9 in the main prison, where Arizona carries out executions by lethal injection.
In an entry made the night before he died, he was upbeat as he recounted the journey to the cell, including his change of clothes – and the excitement at the button and zipper.
‘We rode over here,’ he wrote, adding he had been told to think about his final words. ‘Nice ride, and they kept up the small talk. It was cool watching one of the COs with what I assume was an iPhone.’
On the morning of his execution, one final entry said: ‘I was given a doughnut and a fairly large container. The orange juice was great! (First orange juice I’ve had in I don’t know how long!) The doughnut was prison issue. Enough said.’
Moormann and Towery
Moormann and Towery
Cellmates: Towery, right, was put in a cell with Bob Moormann, left. He described the mentally-retarded killer, who was killed eight days before him, as ‘one of the meekest, polite and quiet men I have ever met’
Closing the letter, he wrote to Baich: ‘I just want to say thank you. Thank you all for the kindness. Take care. God bless.’
Although not documented in his letters, Towery was given a last meal of porterhouse steak, jacket potato and sour cream, asparagus, mushrooms, clam chowder, milk, Pepsi and apple pie a la mode.
Before he died, he broke down in tears, apologised to Jones’s family and his own family, and said his life had been one mistake after another.
‘I would like to apologize to Mark’s family and friends for what I did to them. I would like to apologize to my family,’ he said.
‘So many times in my life I went left when I should have gone right and I went right when I should have gone left. It was mistake after mistake.’
According to the Arizona Republic, he looked at his family and began crying, before adding: ‘I love my family. Potato, potato, potato.’
Waiting for death: Towery is upbeat in the letters - even on the day of his death - but hated being watched in the shower by female guards

Waiting for death: Towery, pictured, remains surprisingly positive and upbeat in the letters – even on the day of his death – but hated being watched in the shower by female guards, calling it ‘humiliating’
Murder: He had been sentenced to death for strangling and robbing Mark Jones in Paradise Valley, Arizona

Murder: He had been sentenced to death for strangling and robbing Mark Jones in Paradise Valley, Arizona
In the 1991 robbery and murder, Towery and Barker had gone to Jones’s home claiming their car had broken down and they needed to use his phone.
Towery then pulled a gun out while Barker handcuffed him, before the duo loaded Jones’ car with electronics, jewelery, credit cards and cash.
They marched him to his bedroom at gunpoint where Towery attempted to inject the victim’s arm with battery acid. When that did not work, he strangled him with plastic ties, making two separate nooses.
Jones’ body was found the next day. The men were caught when a security guard said he had seen them dump the vehicle at an apartment complex.
Barker was given a plea deal for testifying against Towery and was released from jail in 2001.
In attempts for a reprieve, Towery’s attorneys said the court did not consider mitigating factors, such as an abusive childhood at the hands of his mother and drug abuse.


Feb 2: And so it begins… First let me apologize for the messiness of these first letters as I was not allowed my reading glasses as they had a crack in them and I was holding them lens in with tape. So I can’t see. […] Furthermore, I was not given my watch, so for the most part, all times will be best guesses.
6 a.m. They came to my cell, stripped me out and then took me to the shift commander’s office where I waited for about 20 min for everyone to show up. […]
The unit warden began to read the warrant only to discover they were missing pages, So I offered my copy and they sent a (correctional officer) to my cell who brought back the box containing my copy. In the meantime, the unit warden went over the changes in my confinement. How I could have access to indigent supplies, and could have one box of legal work/personal papers, and one religious box. For everything else I would have to put in a written request. […]
At noon […] they took me back to medical where the nurse went over my daily meds with me and how the meds, which have been coming to me in monthly supply packs for fifteen years or so are somehow now so dangerous that the nurse has to bring them to me every morning on a “watch swallow basis.” […]
A few notes about my cell. They have a TV pushed up in front of the cell, so looking through the holes (in the security screen) is difficult at best, and nauseating/vertigo inducing to the point where I really just want to listen to it, but there is a problem there. The earbud extension they stretch through the hole barely reaches to the table, a good five or six feet short of the bunk.[…]
Feb 3: 6:30 a.m. They asked me if I wanted rec or a shower. I asked for a shower. They stripped me out with a female officer present. (Now, personally, I’m not the shy type, but having a female officer on death watch is just one more humiliation.) Anywho, as I came out the nurse was there to take my vitals. […] they also took my temperature and pulse. Don’t know why they were.
So I take a shower with the generic soap and shampoo they provide. I asked about conditioner, there is none. […] so after my shower I asked for a palm brush. No. Asked for a comb. There isn’t one. […] So I told them I could just use the clippers and shave my head. No big deal to me. If I can’t take care of my hair properly, I’d rather shave it. I usually do for the summer. […]
Approx 9:00 a.m. or so, psych dr came in and asked me if I was alright. I told him I was all good and sent him on his way.
Approx 11:00 a.m., assistant deputy warden woke me up with “I heard you wanted to shave your head.” (I guess the COs made it sound like I was flipping out when I was completely calm. Long hair, bald, I’m fine with either.) […]
The feeling of complete helplessness and hopelessness grows by the hour because of the way all of this is done. Every time you want to blow your nose or go to the bathroom you have to ask for toilet paper. […] 3:00 p.m. (approx) the psych nurse just came with the same questions. Are you suicidal? Homicidal? Anything you want to talk about? […]
No way I can work out without my knee braces, shoes, ankle sleeves, all the things my busted old body needs. Oh, and motivation. Don’t have that either to be honest.
Feb. 12: 5:00 a.m. Oh my gosh! Now a nurse is in here. Bob [Moormann] was feeling a bit out of it (his blood sugar), so she’s come in to check. He is speaking in ultra-hushed tones, and she is practically yelling, “What? I can’t hear you Mr. Moormann, I’m really hard of hearing.”
Look at Bob. As I was saying on the phone, Bob is one of the meekest, polite and quiet man I have ever met. I truly believe they are committing a crime against nature if they execute him. He doesn’t get this. Sure, he knows right from wrong. He knows they are going to kill him. He knows he committed a horrific crime. Sure. But he knows these things as a child does. I’m not a doctor, but I can tell you from knowing Bob for nearly 20 years now, he doesn’t really get it. He is guilty, no doubt, but there is no way he is culpable in it. What I mean is, he should have been in a hospital from the very beginning. His stepmother and what she did to him broke him in a way that made him a man-child. I liken him to Lenny in the old book Of Mice and Men.
6:33 a.m. My weight, 221, officially 10 lbs lost since coming here on the 2nd. My B.P. was 138/80. I have my phone call with [blacked out] at 10:15 and a visit at 11:00 a.m. Woo hoo!!! Today is going to be a great day!!
Feb. 13: Oh! One more observation, and for me, it’s a good one!! I have not seen a single roach, water bug, scorpion, stink beetle or spider. Woo-hoo!! Over on the other side I lived next to the rec pen and I went on Safari daily!
Feb. 15: Okay, this is funny. Exactly who is watching whom? I’m sitting here watching the news, and happen to glance up to see both COs with their chins on their chests and their eyes closed. Good for them! Second to the stress I feel, my family feels and of course the stress you’ll feel, I’m sure this has to be stressful to them too. So a moment’s relaxation is well earned. I also enjoy the irony.
Feb. 16: 8:50 a.m. They just called an ICS. Something is wrong with Bob. He had told the nurse this morning that he had problems sleeping last night, and then he was throwing up and barely responsive. They took him to medical in a wheelchair, and the officer went in and cleaned up his cell.
10:14 a.m. It just came across the radio. Bob is leaving the unit to go to the hospital.
Feb. 18: 4:16 p.m. They just brought Bob back in a wheelchair!! He’s been up at medical the last two hours, but I don’t have any details yet. What amazes me is that he can barely walk or respond, and still they make him come to the front of his cell after they close the door to remove his restraints.
Feb. 21: 6:40 p.m. Bob called and asked me what ya’ll had to say from today’s [federal court] hearing. I let him know we figured about right as to Judge [Neil] Wake’s position. But I told him that if Wake rules tonight or tomorrow against us, that we will appeal to the 9th [U.S. Circuit Court of Appeals]. He asked me, “Then who will give a stay?” I told him it would be up to the 9th. He said, “Yeah, but what judge will give me a stay?” and I told him we would have a 3 judge panel most likely and they would rule on the injunction. He said “Okay, you know I don’t understand this legal stuff. I’m sorry if I bothered you.” I told him it was no bother and he could call me any time. He’s so lost!
Feb. 27: 6:09 p.m. WORST NIGHT YET! […] They just did shift change and we have a female on watch! Which I think is completely inappropriate! I don’t have an issue with women working the prison, or anywhere, generally. But, in a situation like this when you can’t go to the bathroom without someone being 10 feet away staring at you, it’s just not right.
Feb. 28: Bob is gone. May God forgive them.
March 1: 6:52 a.m. The Sgt. asked me what happened with Bob, and of course I told him I wasn’t here when they took Bob out. He said that apparently Bob started freaking out and made himself sick. I think his system just wasn’t used to the food and two pints of ice cream.
March 2: The hearing went as I expected. […] My sisters were amazing, but the board had no intention of granting clemency. […]
The staff was visibly upset by it. They remained professional, but they were clearly affected. They are human after all.
March 7: Hey now! I hope this, my last log finds you doing great! As for myself? Well, things are about as I imagined. They showed up at about 10:20 p.m. to strip me out. They did the whole naked dance and the squat and cough. Then they gave me a pair of boxers and a pair of deck shoes. I was grabbed on both sides, firmly, but not roughly. I was taken to the boss chair, and from there I was taken to a day cell, given a pair of socks, t-shirt, and a pair of pants with A BUTTON + ZIPPER!! Woo-hoo!!
Anywho, I was then put in a belly chain, shackles and then led out to a waiting van. Again, I went nowhere without hands on me. Even when they were putting the cuffs on, someone was holding my arm. We rode over here. Nice ride, and they kept up the small talk. It was cool watching one of the COs with what I assume was an iPhone.
Once arriving here, they ushered me in. All the while they are telling me they will be respectful and ask that I be. The warden warned me about my final words. I’ve been told that I should think about my statement and that he will (or someone will) rehearse it with me in the morning.
One more thing: there are four officers watching me, carrying on conversations and two are female. AND I’M SUPPOSED TO SLEEP?!
The two female officers disappeared around the corner, so I took the opportunity to urinate. But they came right back. The male officer said I was using the restroom, and the response was, “I work in an all male prison.” True, but still, there can be respect! Then I had to ask for some soap and a towel. I was given a bar of soap and one paper towel. And had to give them back!!
March 8: 7:00 a.m. Good morning! Well, I actually slept well. I woke up about 5:00 a.m. I was given a doughnut and a fairly large container. […] The orange juice was great! (First orange juice I’ve had in I don’t know how long!) The doughnut was prison issue. Enough said.
I just finished my visit with Deacon Ed and receiving communion. Now I’m just waiting for y’all, at which point I’m going to give you my legal work and my Bible. Please give my Bible to [name blacked out].
As this is my last entry, I just want to say thank you. Thank you all for the kindness. Please give everyone my best and know that I will carry y’all on my lips to God.
My best wishes to you all.
Take care.
May God Bless!!
Robert Charles Towery

Wrongful convictions: One of Florida’s greatest shames










Bill Dillon

Testimony from now-discredited dog handler John Preston helped convict William Dillon (above in 2008) and others. (George Skene, Orlando Sentinel file)


Last week, Florida finally made amends for wrongly imprisoning a Brevard County man for 27 years.

With cameras rolling, Gov. Rick Scott apologized to Bill Dillon for the corrupt process that led to his conviction and signed a bill compensating Dillon with $50,000 for each year stolen from his life.

It was justice due … and delayed.

Yet this ugly chapter of Florida’s history is not over. Because dozens of other men were also convicted by the same fraudulent witness who helped imprison Dillon.

And the state isn’t doing a thing to right those wrongs.

In fact, as Dillon drove home from Tallahassee on Friday, he was unable to revel in the end of his three-decade-long nightmare. Instead, he found himself thinking about all the others whose cases were never properly vetted.

“They deserve to have their cases checked out,” he said. “My goodness, they deserve at least that much.”

They are the dozens of men also convicted with the help of John Preston.

Preston was a dog handler — the guy Brevard County authorities called in the 1980s when they couldn’t make a case legitimately.

Preston who would say whatever they wanted him to.

He once claimed that his German shepherd picked up a suspect’s scent in the middle of a lake. Another time, he claimed the dog caught a scent in the middle of a busy highway — months after the crime had been committed.

No other dogs could do such things. And it turned out that Preston’s couldn’t either.

A judge later exposed him as a fraud. In a court-supervised test, the dog could do virtually none of what Preston had claimed.

The judge would later say that Preston, now deceased, was retained “to confirm the state’s preconceived notions about cases.”

As horrifying as that may sound — that cops and prosecutors knowingly conspired to use bad evidence to convict people — it was actually pretty simple.

Most of the cases involved horrendous crimes, such as rapes and murders. In Dillon’s case, a man had been stabbed to death and his body left in the woods. Jurors were eager to make someone pay — and ready to believe anyone who would help them do that.

Along with the bogus testimony from Preston, Brevard authorities also relied upon witnesses who would later be discredited as well. (Two recanted their testimony. One had sex with an investigator.)

“I never got over how easy it was for them to do it,” Dillon recalled Friday. “Or how long it took for them to be found out.”

After Preston was exposed, some of the men began filing appeals with the help of nonprofit groups such as the Innocence Project.

So far, three men whom Preston helped convict have been freed from prison — after spending, collectively, more than 50 years behind bars.

An appeal is under way for a fourth.

Dillon and justice advocates are convinced there are more.

But Florida officials have never conducted a comprehensive investigation into all of Preston’s old cases.

Instead, they have relied on individual defendants to file their own appeals … something that took Dillon and one of the other exonerees more than two decades on their own.

State Attorney Norm Wolfinger turned his back on this matter long ago. Former Gov. Charlie Crist did the same.

The promise was supposed to rest with Attorney General Pam Bondi. When campaigning, she vowed to look into all of the Preston cases — for the sake of those still behind bars, as well as those who served their sentences but still carry the stain of a felony conviction.

No one wanted Bondi or anyone else to push for mass exonerations — just to conduct a thorough and independent investigation into all of the cases in which Preston was involved.

But after Bondi got elected, her interest waned.

It’s probably not surprising. The plight of the wrongfully convicted isn’t sexy. Their lobby isn’t powerful. The volunteer activists and lawyers don’t cut campaign checks.

And rarely does the public champion the cause.

Fighting for the wrongly convicted is simply the right thing to do … which apparently isn’t reason enough.

Dillon said Friday that he was heartened by Gov. Scott’s full-throated apology on behalf of a state that did him wrong.

So perhaps Scott can do what all the others have not: call for a thorough investigation to study the legitimacy of all of the Preston convictions.

And maybe members of the public one day will encourage him to do so — and for Bondi to keep her word.

For I’m reminded of the comment from Martin Luther King: “The problems today are not the evil actions of the bad people, but the appalling silence and inaction of the good.”

You can reach Scott’s office at 850-488-7146 or flgov.com/contact-gov-scott and Bondi’s office at 850-414-3300 or myfloridalegal.com/contact.


As We See It: Weighing the death penalty







It would be yet another example of making public policy through initiative, but the drive to place a state death penalty referendum on the November ballot is long overdue.

Backers of the initiative say they have already collected 800,000 signatures, far more than the 504,760 valid signatures required to make the ballot.

If the initiative does make it, as is likely, it will mark the third time in 40 years voters will be asked to decide whether California should have the death penalty. The SAFE California Act would replace the death penalty with life in prison without the possibility of parole.

No matter your opinion on the ultimate morality of capital punishment, the way it has come down has been a travesty in this state. It would be one thing if the death penalty was effectively carried out, but under no stretch of the imagination has this happened.

We’re under no illusion voters will automatically just end the death penalty. History teaches otherwise. In 1972, after the state Supreme Court ruled the death penalty unconstitutional, more than two-thirds of voters overrode the decision. Then, in 1978, 71 percent of voters approved an expanded death penalty law passed by legislators over Gov. Jerry Brown’s veto.

Then, in 1986, voters tossed state Supreme Court Chief Justice Rose Bird, an even more adamant foe of the death penalty, and two other justices off the bench after the judges had regularly voted to overturn death sentences.

Although support nationally for the death penalty has been dropping slightly, a September poll in California on the issue showed 68 percent support, although respondents — when asked the appropriate penalty for convicted murderers — supported life in prison without the possibility of parole over death. No state, however, has ever repealed capital punishment by a ballot initiative.

This time the backers include Jeanne Woodford, who oversaw four executions when she was warden of San Quentin State Prison, and Donald Heller, the lawyer who wrote the 1978 initiative and who now says he made a “terrible mistake.”

One of the main arguments made by backers of the initiative is the wasteful spending propping up capital punishment in the state. A 2008 study by a state commission found the death penalty was costing taxpayers $137 million a year for trials and appeals and the maintenance of Death Row. Substituting life in prison without the possibility of parole would drop this figure to $11.5 million, the commission said.

Another study last year put the cost even higher, at $184 million, and put the overall cost since the death penalty was reinstated in 1977 at $4 billion. Backers are going to argue that these costs are prohibitive at a time of financial crisis in California, where schools and public safety are at financial risk.

And here’s another figure: $308 million. That’s what each of the 13 executions carried out in California have cost since capital punishment was reinstated. Thirteen. At present, there are 725 condemned prisoners on Death Row in our state.

Among the many reasons so few executions have been carried out is that they’ve been halted since February 2006, after a federal judge ruled that poor staff training, monitoring and faulty procedures could possibly subject a condemned person to constitutionally prohibited cruel and unusual punishment.

Deterrent to heinous crimes or a legal and unaffordable boondoggle? This is a case where Californians should listen to the arguments, pro and con, weigh the evidence, and then vote their conscience.



Burden of proof – Larry Swearingen










Waiting game: Larry Swearingen’s execution date has been set three times during his 12 years on death row, and a hearing is now being held to determine whether his case merits a retrial.

Waiting game: Larry Swearingen’s execution date has been set three times during his 12 years on death row, and a hearing is now being held to determine whether his case merits a retrial.
A Texan execution chamber.

A Texan execution chamber.

IN HIS 12 years on death row, Larry Swearingen’s execution date has been set three times. Three times he has known when he will be strapped to a stretcher and put down with drugs: sodium thiobarbital to anaesthetise him, pancuronium bromide to paralyse his muscles and potassium chloride to stop his heart.

In January 2009, he was on his way to the chamber when the stay of execution came through. ”The way I had to look at it was, ‘I’m just gonna lay down and go to sleep’,” he says. ”I wasn’t gonna grovel. I wasn’t gonna sit there and cry. I can’t be remorseful for a crime that I didn’t commit.”

Swearingen lives at the Allan B. Polunsky unit, an hour or so north of Houston. Together with another 292 men and 10 women awaiting execution for capital crimes committed in Texas, he is kept in solitary confinement. His cell is not quite four metres long and a little over two metres wide, with a slit above head height, more a vent than a window. He has a toilet, a typewriter, a radio and a hotplate. His one hour of daily recreation and exercise is spent alone, although he can talk and play chess through gaps between the cells. Most of his companions are here because they have committed horrendous acts of violence.

After the security check, a public relations officer escorts me to the visiting area. A hand-painted notice in the antechamber reads Do The Right Thing.

Swearingen and I have a booth at the near end, equipped with old-fashioned telephone handsets. He is strikingly calm, his voice rarely rising, even as he complains about the injustice of being locked up for a murder that forensic science shows he cannot have committed. ”It’s not easy being here,” he says. ”There are men who are hanging themselves, men who are cutting themselves, men sitting in their own faeces, men slowly losing their minds. If people think it’s easy they are sadly mistaken.”

Swearingen is a born-again Christian. He sometimes lapses into platitudes about forgiveness and cherishing the simple things. I wonder whether this is an act, or a result of his prolonged isolation, with only his thoughts and prayers for company.

To supporters of the death penalty, the possibility of a fatal miscarriage of justice is negligible. Conservative Supreme Court Justice Antonin Scalia has asserted that there has not been ”a single case – not one – in which it is clear that a person was executed for a crime that he did not commit”.

But in Texas, doubts have been raised by the case of Todd Willingham, who was executed in 2004 after being found guilty of starting the fire that killed his three children – a conviction secured with faulty forensic science, unreliable witness reports, the word of a jailhouse informant and testimony from a psychiatrist who pronounced Willingham a ”sociopath” without having met him. Several renowned arson investigators have since concluded the fire almost certainly started accidentally.

Last year, Troy Davis was executed in Georgia after a federal court upheld his conviction for shooting a police officer, Mark MacPhail, even though no forensic evidence was presented at his trial and several of the witnesses who testified against him changed their stories. The case provoked an international outcry, but it is no more possible to prove Davis’ innocence than it is to be certain of his guilt.

Swearingen’s case is different, in that forensic science provides him with an alibi. He cannot have raped and murdered his supposed victim because he was already in prison when she was killed. If his last appeals fail and he is executed, abolitionists will have the unequivocal miscarriage of justice they have been waiting for.

Melissa Trotter disappeared on December 8, 1998. Swearingen was one of the last people to see her alive, at Montgomery College. Three days later police picked him up on outstanding arrest warrants for minor offences, threw him in jail and began to build a case against him. In a missing persons report, distributed a week later, he was named as the only suspect.

Trotter’s body was discovered on January 2, 1999, in the Sam Houston National Forest by hunters. At first glance, they thought it was a mannequin. She was wearing jeans, but her torso was naked. She had been strangled with one leg of a pair of tights. A search team with cadaver dogs had passed within 20 metres of the spot a fortnight earlier and found nothing.

Although there were signs of decomposition around Trotter’s head, her corpse was in remarkably good condition. At the autopsy, with the District Attorney and two of his sheriffs in the room, Harris County’s Chief Medical Examiner, Dr Joye Carter, estimated she had been dead for about 25 days, meaning she had been killed the day she went missing.

When Carter repeated this at the trial, the defence team let it pass unchallenged. Jurors heard that Swearingen had a history of violence towards women, that he had repeatedly lied to police, that he had fabricated a letter from jail, full of details only the killer could know, in an attempt to confuse investigators. They heard that hairs forcibly removed from Trotter’s head were recovered from his truck and that the other leg of the pair of tights used to kill her was found in his house.

They were not told that the tights appeared during a fourth police visit to the property, after three prior searches had turned up no compelling evidence. Carter did not disclose that she had taken tissue samples from Trotter’s internal organs, which were intact. The DNA under her fingernails, belonging to somebody other than Swearingen, was dismissed as a contaminant – perhaps a drop of blood from a cut in a forensic technician’s hand. The jury took less than two hours to sentence Swearingen to death.

THE Chief Medical Examiner for Galveston County, Dr Stephen Pustilnik, has a Latin inscription taped over the door to his autopsy room: Taceant colloquia, effugiat risus, hic locus est ubi mors gaudet succurrere vitae – ”Let conversation cease. Let laughter flee. This is the place where death delights to help the living.” Eleven years as a forensic pathologist in Texas have made him cynical about pressure from law enforcement to provide convenient autopsy results. ”I’m the sort of person that loves to tell police and DAs that they’re wrong,” he says.

”For many days, where she was found, it was 20 degrees Celsius. If you’re at that temperature for three days, you’re green, bloated and stinky. Inside the body where the heat is held, the organs will decompose at a faster rate than the skin surface will. Her internal organs look beautiful.” At the morgue, Trotter’s body weighed 47.7 kilograms. Alive, she had weighed less than two kilograms more.

Judge Fred Edwards of the Ninth District Court of Montgomery County is conducting an evidentiary hearing to determine whether Swearingen merits a retrial. Edwards, the original trial judge, has denied his appeal twice already. He is up for re-election this year and boasts in his campaign flyers that he has never had a capital case overturned.

Last week, several of the most respected forensic pathologists in Texas testified for the defence. Joye Carter has been called by the prosecution, even though she signed an affidavit in 2007 revising the estimated time of death to two weeks before Trotter’s body was found, when confronted with evidence she collected herself at the autopsy. In other words, Swearingen couldn’t have killed her because he was in jail at the time.

The problem for Swearingen is that most of these pathologists’ conclusions have been heard and dismissed before. After a previous appeal, the findings of fact and law, signed by the judge but written by the district attorney, concluded that ”inconsistencies” between the entomology (estimating time of death by studying insect larvae) and histology (a more accurate method, using tissue samples) meant that none of the science could be relied upon.

”The sum total of their case was that scientists disagree and the jury would have known by their own plain common sense that he was guilty,” says Lloyd White, Deputy Medical Examiner of Tarrant County, whose microscopic examination of tissue from Trotter’s heart and lungs concluded she had been dead for no more than three days. ”I can’t believe the Texas Attorney-General’s office would put that in a document. A person walks in and the jury knows he’s guilty as hell, regardless of the evidence.”

During the appeals process, the burden of proof shifts to the defence. To win a retrial, Swearingen’s lawyer, James Rytting, must show that no reasonable jury would convict, based on clear and convincing evidence of his client’s innocence. ”That is a system that is designed to fail,” he says. ”It’s also designed to look as if it works because it supposedly gives you all these chances, but you do not have a chance in hell when you get down to the standards that you have to meet.”

Whatever Edwards rules, the Texas Court of Criminal Appeals will have the final say. The court, composed of nine elected judges, has only ordered three retrials of capital cases in the past decade. Presiding Judge Sharon Keller is best known outside of Texas for denying a 20-minute extension to a defence lawyer whose computer malfunctioned as he filed an appeal. His client was executed that night.

ANTHONY Graves knows how hard it can be to have a wrongful conviction overturned. He spent 18 years in prison, 14 of them on death row, after being found guilty of murdering a grandmother, her daughter and four of her grandchildren. His execution date was set twice, but he never stopped protesting his innocence. ”When you lose hope, you lose your mind,” he says, ”because the reality sinks in that you’re just gonna be here like an animal until you’re murdered.”

The Texas Court of Criminal Appeal repeatedly upheld his conviction, but after a federal court granted a retrial, new prosecutors admitted there was no evidence linking him to the crime and set him free. Graves has been out for two years. He is trying to build a relationship with his three sons, who are now grown men. He cries when he thinks about calling his mother the day he was released, but he has a broad grin and a determinedly upbeat manner. ”I don’t have time for being angry and bitter,” he says.

His case illustrates how easily an innocent man can become trapped in a system that provides a political incentive for prosecutors to seek and judges to uphold death sentences. His conviction was based almost entirely on the word of the actual killer, Robert Carter, propped up by the lies of jailhouse informants and forensic guesswork presented as fact, but because his original defence and first appeal were poorly handled, his appellate lawyers were severely constrained in the evidence that they could present.

Carter retracted his testimony to whoever would listen, in letters from jail and on his death bed – his last words before he was executed were: ”It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court” – but the District Attorney successfully fought to have this ruled inadmissible. Only a prosecutorial slip, admitting that Carter had changed his story in a television news story about the case, saved Graves from being sent to his death.

”Innocent until proven guilty are words written on a piece of paper,” Graves says. ”That’s not how our system functions. A prosecutor can attempt murder on a man’s life and get away with it.” Lloyd White offers an even more blunt assessment. ”Constitutionally, you’re supposed to be innocent until proven guilty. In Texas, it’s the other way around. If you’re charged with something and you’re sitting there as an accused person, you’re guilty. If the defence isn’t all that sharp, you haven’t got a chance.”

Indigent defendants in Texas generally get a court-appointed lawyer for their trial and initial appeal. An investigation found that of the 131 people executed under former governor George W. Bush, 43 were represented by attorneys who had been disbarred or suspended for unprofessional conduct. Texas has since passed the Fair Defence Act, in response to the notorious case of a lawyer who went to sleep at his client’s trial, but defence teams still often lack the experience and resources they need.

Only certain types of murder qualify as capital crimes: when the victim is a child or a police officer, for instance, or when the killing is combined with another felony, such as rape or armed robbery. Hundreds of people are on death row for stick-ups gone wrong – crimes of poverty, addiction or desperation – one more reason that capital punishment disproportionately affects the poor. African-American and Hispanic defendants are also much more likely to receive a death sentence, particularly if their victim is white.

Since the turn of the millennium, more than 50 men have been freed from death row after their convictions were overturned. There are signs this drip of exonerations is beginning to erode faith in the death penalty. Illinois abolished capital punishment last year. Oregon Governor John Kitzhaber halted a pending execution and said no more would occur during his tenure. Only eight people were sentenced to death last year in Texas, compared with 48 in 1999.

In the most recent Gallup poll about attitudes to the death penalty, 61 per cent of respondents said they support capital punishment. When offered the alternative of sentencing criminals to life without parole, in a CNN survey, there was a more even split, 50 per cent to 48 per cent in favour of incarceration.

Graves argues that the death penalty with its drawn-out appeals process constitutes ”cruel and unusual punishment” and thus violates the Eighth Amendment to the US Constitution. ”From the seats that I sat in for 18 years, seeing men going crazy, losing their minds, because they’re sitting in a cell with no windows, no television, no telephone, waiting to be executed. That’s torture. I’d rather you put your hands on me, because those wounds will heal,” he says.

Under the current Supreme Court, among the most conservative ever, a national moratorium remains a remote prospect. ”I’m not an abolitionist, I’m a realist. And the reality is that we make mistakes,” says Graves. ”And the cost is gonna be too high, because it’s gonna be a life.”

Swearingen is optimistic that he will be granted a reversal. But he also knows that there is a chance he will be executed and become a martyr to a cause that is not of his choosing. ”I hope it saves people’s lives,” he says. ”The more and more people that are released from prison over DNA, people are starting to look at it now – would you want to sit on a jury and sentence a person to death, not knowing what evidence is being kept from you?”




The caging of America










Six million people are under correctional supervision in the U.S.

Six million people are under correctional supervision in the U.S.—more than were in Stalin’s gulags. Photograph by Steve Liss.

A prison is a trap for catching time. Good reporting appears often about the inner life of the American prison, but the catch is that American prison life is mostly undramatic—the reported stories fail to grab us, because, for the most part, nothing happens. One day in the life of Ivan Denisovich is all you need to know about Ivan Denisovich, because the idea that anyone could live for a minute in such circumstances seems impossible; one day in the life of an American prison means much less, because the force of it is that one day typically stretches out for decades. It isn’t the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmates. The inmates on death row in Texas are called men in “timeless time,” because they alone aren’t serving time: they aren’t waiting out five years or a decade or a lifetime. The basic reality of American prisons is not that of the lock and key but that of the lock and clock.

That’s why no one who has been inside a prison, if only for a day, can ever forget the feeling. Time stops. A note of attenuated panic, of watchful paranoia—anxiety and boredom and fear mixed into a kind of enveloping fog, covering the guards as much as the guarded. “Sometimes I think this whole world is one big prison yard, / Some of us are prisoners, some of us are guards,” Dylan sings, and while it isn’t strictly true—just ask the prisoners—it contains a truth: the guards are doing time, too. As a smart man once wrote after being locked up, the thing about jail is that there are bars on the windows and they won’t let you out. This simple truth governs all the others. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment. For American prisoners, huge numbers of whom are serving sentences much longer than those given for similar crimes anywhere else in the civilized world—Texas alone has sentenced more than four hundred teen-agers to life imprisonment—time becomes in every sense this thing you serve.

For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.

The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. Ours is, bottom to top, a “carceral state,” in the flat verdict of Conrad Black, the former conservative press lord and newly minted reformer, who right now finds himself imprisoned in Florida, thereby adding a new twist to an old joke: A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been indicted; and a passionate prison reformer is a conservative who’s in one.

The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized. Though we avoid looking directly at prisons, they seep obliquely into our fashions and manners. Wealthy white teen-agers in baggy jeans and laceless shoes and multiple tattoos show, unconsciously, the reality of incarceration that acts as a hidden foundation for the country.

How did we get here? How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction? There’s a fairly large recent scholarly literature on the history and sociology of crime and punishment, and it tends to trace the American zeal for punishment back to the nineteenth century, apportioning blame in two directions. There’s an essentially Northern explanation, focussing on the inheritance of the notorious Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and a Southern explanation, which sees the prison system as essentially a slave plantation continued by other means. Robert Perkinson, the author of the Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,” traces two ancestral lines, “from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline.” In other words, there’s the scientific taste for reducing men to numbers and the slave owners’ urge to reduce blacks to brutes.

William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, “The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; “zero tolerance” policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual.

The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality. The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That’s why America is famous both for its process-driven judicial system (“The bastard got off on a technicality,” the cop-show detective fumes) and for the harshness and inhumanity of its prisons. Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated. The inhumanity of American prisons was as much a theme for Dickens, visiting America in 1842, as the cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary, in Philadelphia—a “model” prison, at the time the most expensive public building ever constructed in the country, where every prisoner was kept in silent, separate confinement—still resonates:
I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers. . . . I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.

Not roused up to stay—that was the point. Once the procedure ends, the penalty begins, and, as long as the cruelty is routine, our civil responsibility toward the punished is over. We lock men up and forget about their existence. For Dickens, even the corrupt but communal debtors’ prisons of old London were better than this. “Don’t take it personally!”—that remains the slogan above the gate to the American prison Inferno. Nor is this merely a historian’s vision. Conrad Black, at the high end, has a scary and persuasive picture of how his counsel, the judge, and the prosecutors all merrily congratulated each other on their combined professional excellence just before sending him off to the hoosegow for several years. If a millionaire feels that way, imagine how the ordinary culprit must feel.

In place of abstraction, Stuntz argues for the saving grace of humane discretion. Basically, he thinks, we should go into court with an understanding of what a crime is and what justice is like, and then let common sense and compassion and specific circumstance take over. There’s a lovely scene in “The Castle,” the Australian movie about a family fighting eminent-domain eviction, where its hapless lawyer, asked in court to point to the specific part of the Australian constitution that the eviction violates, says desperately, “It’s . . . just the vibe of the thing.” For Stuntz, justice ought to be just the vibe of the thing—not one procedural error caught or one fact worked around. The criminal law should once again be more like the common law, with judges and juries not merely finding fact but making law on the basis of universal principles of fairness, circumstance, and seriousness, and crafting penalties to the exigencies of the crime.

The other argument—the Southern argument—is that this story puts too bright a face on the truth. The reality of American prisons, this argument runs, has nothing to do with the knots of procedural justice or the perversions of Enlightenment-era ideals. Prisons today operate less in the rehabilitative mode of the Northern reformers “than in a retributive mode that has long been practiced and promoted in the South,” Perkinson, an American-studies professor, writes. “American prisons trace their lineage not only back to Pennsylvania penitentiaries but to Texas slave plantations.” White supremacy is the real principle, this thesis holds, and racial domination the real end. In response to the apparent triumphs of the sixties, mass imprisonment became a way of reimposing Jim Crow. Blacks are now incarcerated seven times as often as whites. “The system of mass incarceration works to trap African Americans in a virtual (and literal) cage,” the legal scholar Michelle Alexander writes. Young black men pass quickly from a period of police harassment into a period of “formal control” (i.e., actual imprisonment) and then are doomed for life to a system of “invisible control.” Prevented from voting, legally discriminated against for the rest of their lives, most will cycle back through the prison system. The system, in this view, is not really broken; it is doing what it was designed to do. Alexander’s grim conclusion: “If mass incarceration is considered as a system of social control—specifically, racial control—then the system is a fantastic success.”

Northern impersonality and Southern revenge converge on a common American theme: a growing number of American prisons are now contracted out as for-profit businesses to for-profit companies. The companies are paid by the state, and their profit depends on spending as little as possible on the prisoners and the prisons. It’s hard to imagine any greater disconnect between public good and private profit: the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible. No more chilling document exists in recent American life than the 2005 annual report of the biggest of these firms, the Corrections Corporation of America. Here the company (which spends millions lobbying legislators) is obliged to caution its investors about the risk that somehow, somewhere, someone might turn off the spigot of convicted men:

Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. . . . The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.

Brecht could hardly have imagined such a document: a capitalist enterprise that feeds on the misery of man trying as hard as it can to be sure that nothing is done to decrease that misery.

Yet a spectre haunts all these accounts, North and South, whether process gone mad or penal colony writ large. It is that the epidemic of imprisonment seems to track the dramatic decline in crime over the same period. The more bad guys there are in prison, it appears, the less crime there has been in the streets. The real background to the prison boom, which shows up only sporadically in the prison literature, is the crime wave that preceded and overlapped it.

For those too young to recall the big-city crime wave of the sixties and seventies, it may seem like mere bogeyman history. For those whose entire childhood and adolescence were set against it, it is the crucial trauma in recent American life and explains much else that happened in the same period. It was the condition of the Upper West Side of Manhattan under liberal rule, far more than what had happened to Eastern Europe under socialism, that made neo-con polemics look persuasive. There really was, as Stuntz himself says, a liberal consensus on crime (“Wherever the line is between a merciful justice system and one that abandons all serious effort at crime control, the nation had crossed it”), and it really did have bad effects.

Yet if, in 1980, someone had predicted that by 2012 New York City would have a crime rate so low that violent crime would have largely disappeared as a subject of conversation, he would have seemed not so much hopeful as crazy. Thirty years ago, crime was supposed to be a permanent feature of the city, produced by an alienated underclass of super-predators; now it isn’t. Something good happened to change it, and you might have supposed that the change would be an opportunity for celebration and optimism. Instead, we mostly content ourselves with grudging and sardonic references to the silly side of gentrification, along with a few all-purpose explanations, like broken-window policing. This is a general human truth: things that work interest us less than things that don’t.

So what is the relation between mass incarceration and the decrease in crime? Certainly, in the nineteen-seventies and eighties, many experts became persuaded that there was no way to make bad people better; all you could do was warehouse them, for longer or shorter periods. The best research seemed to show, depressingly, that nothing works—that rehabilitation was a ruse. Then, in 1983, inmates at the maximum-security federal prison in Marion, Illinois, murdered two guards. Inmates had been (very occasionally) killing guards for a long time, but the timing of the murders, and the fact that they took place in a climate already prepared to believe that even ordinary humanity was wasted on the criminal classes, meant that the entire prison was put on permanent lockdown. A century and a half after absolute solitary first appeared in American prisons, it was reintroduced. Those terrible numbers began to grow.

And then, a decade later, crime started falling: across the country by a standard measure of about forty per cent; in New York City by as much as eighty per cent. By 2010, the crime rate in New York had seen its greatest decline since the Second World War; in 2002, there were fewer murders in Manhattan than there had been in any year since 1900. In social science, a cause sought is usually a muddle found; in life as we experience it, a crisis resolved is causality established. If a pill cures a headache, we do not ask too often if the headache might have gone away by itself.

All this ought to make the publication of Franklin E. Zimring’s new book, “The City That Became Safe,” a very big event. Zimring, a criminologist at Berkeley Law, has spent years crunching the numbers of what happened in New York in the context of what happened in the rest of America. One thing he teaches us is how little we know. The forty per cent drop across the continent—indeed, there was a decline throughout the Western world— took place for reasons that are as mysterious in suburban Ottawa as they are in the South Bronx. Zimring shows that the usual explanations—including demographic shifts—simply can’t account for what must be accounted for. This makes the international decline look slightly eerie: blackbirds drop from the sky, plagues slacken and end, and there seems no absolute reason that societies leap from one state to another over time. Trends and fashions and fads and pure contingencies happen in other parts of our social existence; it may be that there are fashions and cycles in criminal behavior, too, for reasons that are just as arbitrary.

But the additional forty per cent drop in crime that seems peculiar to New York finally succumbs to Zimring’s analysis. The change didn’t come from resolving the deep pathologies that the right fixated on—from jailing super predators, driving down the number of unwed mothers, altering welfare culture. Nor were there cures for the underlying causes pointed to by the left: injustice, discrimination, poverty. Nor were there any “Presto!” effects arising from secret patterns of increased abortions or the like. The city didn’t get much richer; it didn’t get much poorer. There was no significant change in the ethnic makeup or the average wealth or educational levels of New Yorkers as violent crime more or less vanished. “Broken windows” or “turnstile jumping” policing, that is, cracking down on small visible offenses in order to create an atmosphere that refused to license crime, seems to have had a negligible effect; there was, Zimring writes, a great difference between the slogans and the substance of the time. (Arrests for “visible” nonviolent crime—e.g., street prostitution and public gambling—mostly went down through the period.)

Instead, small acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened—“hot-spot policing.” The cops also began an aggressive, controversial program of “stop and frisk”—“designed to catch the sharks, not the dolphins,” as Jack Maple, one of its originators, described it—that involved what’s called pejoratively “profiling.” This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already. Minority communities, Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced. “The poor pay more and get more” is Zimring’s way of putting it. He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.

Zimring insists, plausibly, that he is offering a radical and optimistic rewriting of theories of what crime is and where criminals are, not least because it disconnects crime and minorities. “In 1961, twenty six percent of New York City’s population was minority African American or Hispanic. Now, half of New York’s population is—and what that does in an enormously hopeful way is to destroy the rude assumptions of supply side criminology,” he says. By “supply side criminology,” he means the conservative theory of crime that claimed that social circumstances produced a certain net amount of crime waiting to be expressed; if you stopped it here, it broke out there. The only way to stop crime was to lock up all the potential criminals. In truth, criminal activity seems like most other human choices—a question of contingent occasions and opportunity. Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.

And, in a virtuous cycle, the decreased prevalence of crime fuels a decrease in the prevalence of crime. When your friends are no longer doing street robberies, you’re less likely to do them. Zimring said, in a recent interview, “Remember, nobody ever made a living mugging. There’s no minimum wage in violent crime.” In a sense, he argues, it’s recreational, part of a life style: “Crime is a routine behavior; it’s a thing people do when they get used to doing it.” And therein lies its essential fragility. Crime ends as a result of “cyclical forces operating on situational and contingent things rather than from finding deeply motivated essential linkages.” Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either. Curbing crime does not depend on reversing social pathologies or alleviating social grievances; it depends on erecting small, annoying barriers to entry.

One fact stands out. While the rest of the country, over the same twenty-year period, saw the growth in incarceration that led to our current astonishing numbers, New York, despite the Rockefeller drug laws, saw a marked decrease in its number of inmates. “New York City, in the midst of a dramatic reduction in crime, is locking up a much smaller number of people, and particularly of young people, than it was at the height of the crime wave,” Zimring observes. Whatever happened to make street crime fall, it had nothing to do with putting more men in prison. The logic is self-evident if we just transfer it to the realm of white-collar crime: we easily accept that there is no net sum of white-collar crime waiting to happen, no inscrutable generation of super-predators produced by Dewar’s-guzzling dads and scaly M.B.A. profs; if you stop an embezzlement scheme here on Third Avenue, another doesn’t naturally start in the next office building. White-collar crime happens through an intersection of pathology and opportunity; getting the S.E.C. busy ending the opportunity is a good way to limit the range of the pathology.

Social trends deeper and less visible to us may appear as future historians analyze what went on. Something other than policing may explain things—just as the coming of cheap credit cards and state lotteries probably did as much to weaken the Mafia’s Five Families in New York, who had depended on loan sharking and numbers running, as the F.B.I. could. It is at least possible, for instance, that the coming of the mobile phone helped drive drug dealing indoors, in ways that helped drive down crime. It may be that the real value of hot spot and stop-and-frisk was that it provided a single game plan that the police believed in; as military history reveals, a bad plan is often better than no plan, especially if the people on the other side think it’s a good plan. But one thing is sure: social epidemics, of crime or of punishment, can be cured more quickly than we might hope with simpler and more superficial mechanisms than we imagine. Throwing a Band-Aid over a bad wound is actually a decent strategy, if the Band-Aid helps the wound to heal itself.

Which leads, further, to one piece of radical common sense: since prison plays at best a small role in stopping even violent crime, very few people, rich or poor, should be in prison for a nonviolent crime. Neither the streets nor the society is made safer by having marijuana users or peddlers locked up, let alone with the horrific sentences now dispensed so easily. For that matter, no social good is served by having the embezzler or the Ponzi schemer locked in a cage for the rest of his life, rather than having him bankrupt and doing community service in the South Bronx for the next decade or two. Would we actually have more fraud and looting of shareholder value if the perpetrators knew that they would lose their bank accounts and their reputation, and have to do community service seven days a week for five years? It seems likely that anyone for whom those sanctions aren’t sufficient is someone for whom no sanctions are ever going to be sufficient. Zimring’s research shows clearly that, if crime drops on the street, criminals coming out of prison stop committing crimes. What matters is the incidence of crime in the world, and the continuity of a culture of crime, not some “lesson learned” in prison.

At the same time, the ugly side of stop-and-frisk can be alleviated. To catch sharks and not dolphins, Zimring’s work suggests, we need to adjust the size of the holes in the nets—to make crimes that are the occasion for stop-and-frisks real crimes, not crimes like marijuana possession. When the New York City police stopped and frisked kids, the main goal was not to jail them for having pot but to get their fingerprints, so that they could be identified if they committed a more serious crime. But all over America the opposite happens: marijuana possession becomes the serious crime. The cost is so enormous, though, in lives ruined and money spent, that the obvious thing to do is not to enforce the law less but to change it now. Dr. Johnson said once that manners make law, and that when manners alter, the law must, too. It’s obvious that marijuana is now an almost universally accepted drug in America: it is not only used casually (which has been true for decades) but also talked about casually on television and in the movies (which has not). One need only watch any stoner movie to see that the perceived risks of smoking dope are not that you’ll get arrested but that you’ll get in trouble with a rival frat or look like an idiot to women. The decriminalization of marijuana would help end the epidemic of imprisonment

The rate of incarceration in most other rich, free countries, whatever the differences in their histories, is remarkably steady. In countries with Napoleonic justice or common law or some mixture of the two, in countries with adversarial systems and in those with magisterial ones, whether the country once had brutal plantation-style penal colonies, as France did, or was once itself a brutal plantation-style penal colony, like Australia, the natural rate of incarceration seems to hover right around a hundred men per hundred thousand people. (That doesn’t mean it doesn’t get lower in rich, homogeneous countries—just that it never gets much higher in countries otherwise like our own.) It seems that one man in every thousand once in a while does a truly bad thing. All other things being equal, the point of a justice system should be to identify that thousandth guy, find a way to keep him from harming other people, and give everyone else a break.

Epidemics seldom end with miracle cures. Most of the time in the history of medicine, the best way to end disease was to build a better sewer and get people to wash their hands. “Merely chipping away at the problem around the edges” is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart. To read the literature on crime before it dropped is to see the same kind of dystopian despair we find in the new literature of punishment: we’d have to end poverty, or eradicate the ghettos, or declare war on the broken family, or the like, in order to end the crime wave. The truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand smaller sanities. Ending sentencing for drug misdemeanors, decriminalizing marijuana, leaving judges free to use common sense (and, where possible, getting judges who are judges rather than politicians)—many small acts are possible that will help end the epidemic of imprisonment as they helped end the plague of crime.

“Oh, I have taken too little care of this!” King Lear cries out on the heath in his moment of vision. “Take physic, pomp; expose thyself to feel what wretches feel.” “This” changes; in Shakespeare’s time, it was flat-out peasant poverty that starved some and drove others as mad as poor Tom. In Dickens’s and Hugo’s time, it was the industrial revolution that drove kids to mines. But every society has a poor storm that wretches suffer in, and the attitude is always the same: either that the wretches, already dehumanized by their suffering, deserve no pity or that the oppressed, overwhelmed by injustice, will have to wait for a better world. At every moment, the injustice seems inseparable from the community’s life, and in every case the arguments for keeping the system in place were that you would have to revolutionize the entire social order to change it—which then became the argument for revolutionizing the entire social order. In every case, humanity and common sense made the insoluble problem just get up and go away. Prisons are our this. We need take more care. ♦