The Trouble With Prison

By Kenneth Hartman


In his Republic, Plato’s allegory of the cave describes how the limited perception of man leaves him measuring the world with only the distorted reflections of reality.  The trouble with prison, as it is perceived, is the shadows are further distended by a variety of prisms that bend reality to suit a host of preconceptions, special interests and self-fulfilling prophecies.  The end result of this shape-shifting is a system that produces failure as a matter of course, that pretends to protect the mass of society, and that destroys whole communities in its voracious appetite.  The trouble with prison is prison.

I serve the other death penalty – life without the possibility of parole – for killing a man in a fistfight when I was 19 years old.  In that I will never get out, I am freed to speak a more direct and unfiltered truth than those who must convince a panel of unsympathetic officials they should be returned to the real world.  My 29 years of direct experience, coupled with a powerful thirst to come to grips with my own personal truth and gain an intellectually valid grasp of this world, have taught me a series of lessons.  While I do not claim to have unchained myself completely from the bonds of ignorance, I believe I can read and interpret accurately the tortured shapes on the dull concrete walls of this particular cave.

People are put in prison because nothing else works.  This is the foundational misperception that supports the prison edifice.  The truth is far less simple.  There are prisoners whose lifetime of dangerous behavior leaves prison as the only choice for society.  But these are a tiny minority in the sea of pathetic misfits and perennial losers walking the yards.

Most prisoners are uneducated, riddled with unresolved traumas and ill-treated mental health problems, drug and alcohol addictions, and self-esteem issues that are beyond profound, bordering on the pathological far too often.  The vast majority has never received competent health care, mental health care, drug treatment, education or even an opportunity to look at themselves as human.  Were any of these far less draconian interventions even tried, before the descent into this wretched cave, no doubt many of my peers would be leading productive lives.  Nothing else works is not a statement of fact; it is the declaration of an ideology.  This ideology holds that punishment, for the sake of the infliction of pain, is the logical response to all misbehavior.  It is also a convenient cover story behind which powerful special interest groups hide.

Prison employees benefit by our failure.  This startling fact contains within it a monstrous truth.  These well-organized government workers created the victims’ rights movement, a sad shill for the prison-industrial complex.  Using the handful of politically active victims of crime to obscure their actual agenda, propositions are passed, laws are changed, and policies that could prevent victimization in the first place are suppressed.  Both of these groups, working in tandem with the corporations that supply and construct prisons, pour millions of dollars into the political process to achieve a system guaranteed to fail.  But this failure by any other measure – high rates of recidivism, high rates of internal disorder, growing prison populations serving longer sentences – results in greater profits to the corporations, increased membership in the unions, and ever growing piles of dollars to buy still more influence.

After reading a small library of books and studies on the subject, along with my direct experience, it is clear only three rehabilitative programs have proof of success.  Increased and enhanced visiting to build and maintain family ties, higher education, and quality drug and alcohol treatment constitutes this golden triad.  It is not a closely held secret that these work to lower recidivism and, thus, prevent victimization; rather, this is well known.  Nevertheless, the special interest groups lobby incessantly against all three.  In my 29 years, visiting has deteriorated from a slightly unpleasant experience to a hostile and traumatic acid bath that quite effectively destroys family ties.  Higher education is virtually nonexistent but for those few with the substantial resources needed to purchase it.  In those rare cases where innovative ways have been found to bring education back into the prisons the special interest groups have mounted vicious campaigns to terminate the programs.  The opposition to drug and alcohol treatment, much more widely supported in the body politic, is subtler.  Using the proven method of compulsory participation by the least amenable, those programs that are instituted are crippled in the normal chaos of prison.  All of this opposition stands behind the banner of protecting victims’ rights, as if only the desire for revenge by past victims of crime matters, over even the potential losses of future victims.

With recidivism rates well beyond two-thirds, the assumption for all prisoners is that of failure.  It is written into the policies of prison that force parolees back to failed situations, that site prisons far from the urban areas most prisoners come from, and provide no after-parole assistance.  When I first came into the California state system in the late ‘70s, a parolee received a decent set of clothes, a bus ticket and $200 in cash.  Today’s parolee receives a sweat suit unsuitable for a job interview and $200; out of which is deducted the cost of his bus ticket and decades of devaluation.  The parolee, having received no real substance abuse treatment, no serious education or training, no useful mental health counseling, and holding barely enough money for a short stay in a flophouse, is cast back out into the real world to swim or, more likely, sink.  The aid that would make the transition more likely successful is denied, ostensibly, to save money.  The pennies it would take to reestablish the parolee vanish next to the fifty thousand a year it costs to re-incarcerate the parole violator.

Yet again, sadly, it becomes clear on close inspection that without our mass failure the gears of the prison-industrial complex would stop.  Jobs would be lost, rural communities devastated, and the flow of political contributions would dry up.  From the perspective of those who depend on our failure to sustain themselves, our success would be a disaster.  In my state, an admitted extreme example, on any given day about half the prison population are parole violators, a majority of whom have broken no law but rather violated one of the vast web of confusing and devious tripwire rules they must navigate around on the other side of the fences.

Failure is expected, a bad enough thing, to be sure.  Worse, failure is celebrated and lauded.  The primary rationale of parole divisions is to lock as many ex-cons as possible back into the prisons.  There are gang task forces, and drug task forces, and absconder recovery units, and high control teams, all of which operate on a presumption of failure.  These black-clad, helmeted law enforcement platoons prowl the alleys and back streets of the inner cities hunting down parolees.  They justify the over-application of picayune rules as preventing the assumed major crimes the parolee is bound to commit, eventually.  After the high-fives and backslapping are over, parole officers content themselves with their sense of exacting a frighteningly prospective form of justice.  The now current convict heads back for another year or two of dehumanization for forgetting to report he moved or talking to his cousin also on parole.

The prison system dresses itself in a cloak of respectability by claiming to protect society from the “worst of the worst.”  At a certain level, this is true.  There are some irredeemables, those who should not be allowed to prey on society ever again.  The trouble with this assertion, and the direction it has taken, is there just aren’t enough worst of the worst to justify the concrete and razor wire empire, not to the extent it has grown.  The definition of who fits into this excluded class has expanded dramatically over the years, along with the borders of the system.  Now, along with the serial predator is housed the serial drug addict and the serial shoplifter and the serial loser, all serving extraordinarily long sentences on prison yards devoid of even a semblance of rehabilitation.  This in the name of protecting society.

Policies are enacted that are purposely brutal by staff who have been trained to view prisoners as less than human, to believe that their real role is to exact revenge, who see us in all ways the enemy, the dangerous other.  This message, that we are not fully human, is pressed into us every moment of every day in a multitude of ways from the mundane (being forced to wear pants with “PRISONER” stamped on the leg in neon orange lettering) to the profound (being prevented from conducting a business or owning property).  This results in a diminishing of our consciousness to that of the unwelcome alien.  From inside this dark recess, it is near to impossible imagining rejoining humanity.  As one state senator in California observed, “If you were to set out to design a system to produce failure, this would be it.”  It is not surprising this elected official represents an area that has disproportionately suffered due to these policies and was a professor of psychology before assuming office.

Whole communities have been decimated, literally, by the policies of the system.  People of color, the poor and the dispossessed, are represented in numbers far exceeding their share of society.  It starts on streets patrolled by an occupying force of police who view these people as less than, as suspects first and foremost.  Arrests are made for the most trivial offenses, for the little acts of rebellion and frustration not uncommon to young people everywhere.  But down on the occupied bottom of society there is no call made to mommy and daddy.  No well-dressed lawyer will show up in court with a privately contracted psychologist to explain junior’s learning disability.  A bored, too often hostile, public defender will convince the youth to take a plea bargain that 20 years later becomes the first strike in a life sentence for boosting a ham.  Once a name has a criminal justice system number affixed to it, the move from possible suspect to probable offender is complete.  In some of the worst off communities, every third or fourth man, and a growing number of women, carry a number on their shoulders.

As the mass of people in this country who labor to carry a number grows so, too, does the harm caused and exacerbated by the prison system.  No longer a tiny fringe of malcontents and unrepentant thugs, we who have sprung from the electrified fences and gun towers, from inside the racially polarized and ganged-up yards, who have spent a significant portion of our lives locked into tiny concrete boxes bending over and spreading our cheeks, are a growing segment of the real world.  We have spouses and children, parents and siblings, and our influence on the collective consciousness is solidifying.  It is seen in the glorification of violence and the fascination with acts of irrational and pointless rage that fills the media and dominates the lives of prisoners.  It is heard in the adoption of jailhouse terms applied to schools put on “lockdown” and street cops “kickin’ it with the homies.”  It is felt in the tighter ring of controls that encircle the lives of free people in the real world, a disturbing reflection of the world of prisoners.

Prison is insatiable and unquenchable.  It devours everything in its path and swallows whole anything that attempts to deter it.  All these years I have spent inside I have observed just how effectively the system crushes its opposition.  The well meaning and good hearted eventually surrender to the overwhelming force and terrible despair.  Not least of which, that pouring out of the desperate flailing of prisoners ourselves as we beat our heads against the walls of our internal exile with a maniacal ferocity.  We internalize the separation and removal, the assumed less-than status, and hold up the idiotic and vainglorious pride we pretend to like clowns’ make-up to hide our shame.  Some of us profess to be immune to the battering we endure; many of us deny it happening in spite of the obvious bruises.  In the end, the vast majority of us become exactly who we are told we are: violent, irrational, and incapable of conducting ourselves like conscious adults.  It is a tragic opera with an obvious outcome.

The talk lately making the rounds in political circles, among the power brokers and well heeled, is of reviving the idea of rehabilitation.  The past decades of exploding costs and terrible outcomes, particularly as schools and old folks homes are closed to bridge budget shortfalls, has allowed the concept of using prison to correct, to heal and restore, to be taken seriously again. This is a good thing.  It is long overdue.  But it is an idea that will have to battle powerful forces determined to diminish it into a shadow without substance.  It will face the added complexity of implementation managed by guards and administrators, teachers and counselors who fundamentally reject the notion that prisoners are capable of being restored.  Along with this uphill climb, dragging along the recalcitrant, will be the added obstacle of the special interest groups defending their world of failure.  The simple truth is the less of us the less of them.  If we stop coming back their world will collapse.

Still, the greatest struggle to effect change will be convincing the mass of prisoners, the millions of men and women who have been brainwashed into believing they simply cannot become better.  At the head of this mass will be the seeming leadership from our own ranks, those who have used the status quo to achieve a perverse success.  They are the drug dealers and negative leaders, the phony writ writers, the whole group of profiteers and self-servers who will seek to undermine positive change because in it they glimpse the end of their domination of the dysfunction.  That they aid and assist the special interest groups, the organized revenge groups and the corporations profiting off of our collective misery is obvious.  Heedless, they will seek to maintain the failed system through acts of atavistic violence and jackass resistance.  They might succeed in stifling change, and not for the first time.  This is the modern world of prison, constructed after 25 years of surrendering to fear mongers and manipulators.  It is a fearsome mess.

The trouble with prison is, indeed, prison itself.  The way prison is managed and envisioned.  The idea that by humiliating and brutalizing damaged people some possible good could result is simply a falsehood, a lie perpetrated by interests who benefit from failure.  It has never worked.  It is not working now.  It will never work.  No amount of money poured down society’s communal drain will buy success.  No minimum number of broken bodies and tortured spirits will purchase rehabilitation.  No pyre of burnt offerings, no matter how large and hot, will somehow result in better people walking out the front gate in their gray sweat suits.  The problems are systemic and resilient.  Nothing short of radical and sustained reform will be enough to overcome the resistance of a system built to fail.  It may not be possible, but to not try is to condemn thousands upon thousands of our fellow human beings to a witches’ brew of victimizations, in here and out there.  To not try would be an act of cowardly capitulation to bullies and thugs.  To not try is to become like those who have erected this system, who keep it going, who must somehow sleep with what they have do.

Kenneth Hartman has served over 29 continuous years in the California Department of Corrections and Rehabilitation on a life without the possibility of parole sentence. He is the founder of the Honor Program at California State Prison-Los Angeles County, and serves as the Chairman of its Steering Committee. He is currently leading The Other Death Penalty Project, a grassroots organizing campaign conducted by LWOP prisoners with the ultimate goal of abolishing life without parole sentences. He can be reached at:


Gitmo ‘one of our biggest problems,’ Obama confesses

President Barack Obama acknowledged Saturday that figuring out what to do with detainees at Guantanamo Bay, Cuba who are too dangerous to release “is going to be one of our biggest problems.”

In an interview with C-Span television, Obama suggested it would require a bipartisan effort to create a legal and institutional structure under which the detainees could be tried.

“It’s a messy situation. It’s not easy,” he said.

Obama traced the problems to “poor decisions” made by the previous administration in the period right after the September 11, 2001 attacks “because people were fearful.”

He said “I think we cut too many corners and made some decisions that were contrary to who we are as a people,” he said.

“We’ve got a lot of people there who we should have tried early, but we didn’t. In some cases, evidence against them has been compromised,” he said.

“They may be dangerous, in which case we can’t release them. And so, finding how to deal with that I think is going to be one of our biggest problems,” he said.

But he said he was confident that the detainees could be tried by US military commissions or in US civilian courts “if we approach this in a way that isn’t trying to score political points, but is trying to create a legal and institutional framework with checks and balances, respectful of due process and rule of law.”

His comments came just two days after he clashed with former vice president Dick Cheney on the issue in dueling, back-to-back debates.

Cheney attacked Obama’s approach to the “war on terror” as increasing the risk to Americans and defended the harsh interrogations of detainees that tainted evidence gathered against them.

Meanwhile, Senate Democrats joined Republicans in refusing funds for Obama to close Guantanamo, demanding a more detailed plan from the administration amid widespread congressional resistance to transferring detainees to prisons in the United States.

Cash-strapped jails begin charging inmates for snacks – even room and board

Shades of Charles Dickens, critics say the controversial measures create debtors prisons

South Chicago ABC

Hey folks,

I recently had the privilege of hanging out with Anthony Rayson, the driving force behind the prison abolition group, South Chicago Anarchist Black Cross. I got to see Anthony’s impressive zine collection and hear about some of the folks in prison that he is particularly exciting about corresponding with. He recommend an essay by Lee Savage, an anarcha-feminist prisoner in Florida to me entitled “Zero to Anarchist in 1.2 Seconds”. To use Anthony’s words, this is explosive stuff. Lee Savage is an insightful and articulate voice from inside, determined to be connected to social movements through her writing. I plan on corresponding with her soon to learn more about her story and situation, and hope everyone will check out her writing.

You can find “Zero to Anarchist” here

Also be sure to check out South Chicago Anarchist Black Cross

Keep up the fight,


Frustration aired in Shediac over plan for jail in tourist town

CBC News

A planned $40-million jail in Shediac is continuing to divide the southeastern New Brunswick town, as some worry about the impact on tourism and the possible need for a stronger police presence.

Finance Minister Victor Boudreau, the local MLA, tried to reassure residents at a public meeting Wednesday night that the new 90-cell correctional centre will be a safe addition to the community.

“People will barely see it when they drive by. I see the positive. I see economic development. I see young families moving to Shediac that may be working there,” he said.

At the community meeting, tourism operators and some citizens continued to express worries about safety and the future jail’s effect on tourism, while others were frustrated by the lack of consultation before the project was announced.

Leo Doiron, a former town councillor, said he believes the current mayor and council were blinded by the $800,000 the jail will pay in property taxes to the municipality.

Doiron argues the jail will also create expenses for the town.

“Are they going to require more RCMP [officers] in the town of Shediac? I have a hard time believing that the RCMP is going to say 10 officers is enough, the same way it was before we had a prison in town,” he said.

Campground owner concerned

The planned jail would sit less than 600 metres away from Camping Beausejour, a well-known local campground.

Marie-Paul Martin, the owner of the campsite, is the jail’s most vocal opponent. She said she had met privately with officials from the departments of Public Safety and Supply and Services, who tried to sell her on her upcoming neighbour.

“They explained how high-tech it would be. How they were going to play a social role, with places where we could go have reunions and parties … they want to be good neighbours.”

Another concern for many of the jail’s opponents, such as Martin, is how quickly the facility was approved.

Joanne Murray, the executive director of the John Howard Society of Greater Moncton, said she heard many questions at the public forum about the approval process along with questions about public safety.

“What’s this going to do to the town in terms of having inmates walking around throughout the town?” Murray said, summing up the questions posed to her.

Murray said her organization can at least lessen local safety concerns, and if necessary the John Howard Society will help released inmates and transport them out of town.

The proposed jail complex is not being opposed by everyone in the community.

Rene Clement is one resident who is backing the project.

“I think it’s a terrific idea. As a matter of fact, I told … Victor Boudreau … that he should have brought it down to my place,” he said.

Last captured SLA member is released from prison

LA Times

by Ari B. Bloomekatz

James William Kilgore, the last captured member of the Symbionese Liberation Army, was released on parole Sunday morning from a Northern California prison.

Kilgore, 61, was arrested in Cape Town, South Africa, in 2002 after almost three decades on the run.

He was one of five SLA members who pleaded guilty to second-degree murder in the 1975 death of Myrna Opsahl, a 42-year-old mother of four who was killed by a shotgun blast after she arrived at a suburban Sacramento bank.

Kilgore apologized to Opsahl’s family at his sentencing, saying he wished he could live that day over.

He served a two-year sentence for possession of an explosive device and making false statements on an application for a passport. In 2006, he began a six-year sentence for Opsahl’s murder.

Kilgore, a former honors student from a wealthy Marin County family, joined the SLA after college. The group was a Vietnam War-era revolutionary outfit that gained notoriety after kidnapping heiress Patricia Hearst in 1974.

After fleeing, Kilgore spent more than two decades in Zimbabwe and South Africa. He had married an American woman overseas, raised two sons and worked as a university professor.

He was released at 12:20 a.m. from High Desert State Prison in Susanville, near the border with Nevada and about 180 miles northeast of Sacramento, said Oscar Hidalgo of the Department of Corrections and Rehabilitation.

Kilgore is the last of five captured SLA members to be released from custody. Another, Sara Jane Olson, was released in March.

He will serve his parole term in Illinois, where his wife lives, Hidalgo said.

Posted in USA

The Mumia Exception

by J. Patrick O’Connor
Crime Magazine

Since his conviction in 1982 for the murder of Philadelphia Police Officer Daniel Faulkner, Mumia Abu-Jamal, through his numerous books, essays and radio commentaries, has become the face of the anti-death penalty movement in the United States and an international cause célèbre. Paris, for example, made him an honorary citizen in 2003, bestowing the honor for the first time since Pablo Picasso received it in 1971. The “Free Mumia” slogan is seen and heard around the world. Over the last 27 years he has become the most visible of the invisible 3,600 Death Row inmates in the United States.

The case of Mumia Abu-Jamal cries out for justice not because he is famous but because he is innocent. Kenneth Freeman, the street-vendor partner of Abu-Jamal’s younger brother, Billy Cook, killed Officer Faulkner moments after Faulkner shot Abu-Jamal in the chest as he approached the scene where Faulkner had pulled over the car Cook was driving. When Faulkner began beating Cook with an 18-inch long flashlight, Abu-Jamal ran from his nearby taxi to come to his brother’s aid. After Abu-Jamal was shot and collapsed to the street, Freeman emerged from Cook’s car, wrestled Faulkner to the sidewalk and then shot him to death. Freeman fled the scene on foot. Numerous witnesses told police they saw one or more black men fleeing right after the officer was shot. A driver’s license application found in Faulkner’s shirt pocket led the police directly to Freeman’s home within hours of the shooting.

But the police did not want Freeman for this killing, releasing him without him even having to call his attorney. The police, led by the corrupt Inspector Alfonzo Giordano who took charge of the crime scene within minutes of the shooting, wanted to pin Faulkner’s death on the blacked-out, police-bashing radio reporter at the scene. Freeman they would deal with later, meting out their own brand of street justice in the dead of night.

Five days after Faulkner’s death, the Center City newsstand where Freeman and Billy Cook operated a vending stand burned to the ground at about 3 a.m. Freeman told a Philadelphia Inquirer reporter hours after the arson that “there was no question in my mind that the police are behind this.” The Inquirer also quoted a Center City police officer who was on patrol in the area that morning as saying, “It’s entirely possible” that “certain sick members” of his department were responsible. “All I know is when I got to the station to start my shift at 7:30 this morning, the station house was filled with Cheshire grins.” Although the “unsolved” arson bankrupted Freeman and Cook, a worse fate awaited Freeman.

On the night in 1985 when the police infamously firebombed the MOVE home and burned down 60 other row houses in the process, incinerating 11 MOVE members including five children, Freeman’s dead body would be found nude and gagged in an empty lot, his hands handcuffed behind his back. There would be no police investigation into this obvious murder: the coroner listed his cause of death as a heart attack. Freeman was 31.

Abu-Jamal had been well known to local police since he joined the Philly chapter of the Black Panther Party at age 15. The next year he was named “lieutenant of information,” an appointment the Inquirer ran on its front page, picturing the young radical at Panther headquarters. Even though the chapter would soon dissolve, both the police and the FBI continued to monitor Abu-Jamal when he left Philadelphia to attend Goddard College in Vermont and on his return to Philadelphia to take up his radio career. As his career took wing, landing him a high-profile job at Philadelphia’s public radio station, that scrutiny intensified due to his overtly sympathetic coverage of the radical counter-culture group MOVE. Throughout the 1970s and well into the 1980s, police confrontations with MOVE were brutal displays of civic discord and police abuse that culminated in the 1985 firebombing.

Abu-Jamal’s case has been politically charged from the beginning. By the time he was arrested for the murder of Officer Faulkner, he was a marked man to the police for his Black Panther Party association and his favorable reporting of MOVE. Inspector Giordano, who detested both Abu-Jamal and MOVE, would set the framing of Abu-Jamal in motion by falsely claiming that Abu-Jamal had told him in the paddy wagon that he had killed Faulkner. (Giordano would not be called by the prosecution to reiterate his fabrication at Abu-Jamal’s trial. Instead, on the first business day following Abu-Jamal’s sentencing, Giordano would be “relieved” of his duties by the police department on what would prove to be well-founded “suspicions of corruption.” An FBI probe of rank corruption within the Philadelphia Police Department – the largest ever conducted by the U.S. Justice Department of a police force – would lead to Giordano’s conviction four years later. The FBI investigation would ensnare numerous other high-ranking Philadelphia police officials and officers, many of them involved in Abu-Jamal’s arrest and trial. Deputy Police Commissioner James Martin, who was in charge of all major investigations, including Faulkner’s death, was the ringleader of a vast extortion enterprise operating in City Center.)

The trial of Abu-Jamal was a monumental miscarriage of justice from beginning to end, representing an extreme case of prosecutorial abuse and judicial bias. A pamphlet published by Amnesty International in 2000 stated it had “determined that numerous aspects of Mumia Abu-Jamal’s case clearly failed to meet minimum standards safeguarding the fairness of legal proceedings.”

The trial judge, Common Pleas Court Judge Albert F. Sabo, presided at more trials that resulted in the defendants receiving the death penalty than any judge in the nation. Of the 31 so sentenced, five won reversals on appeal, an indication of extreme judicial bias. The Inquirer called him “a defendant’s worst nightmare,” a prominent defense attorney referred to him as “a prosecutor in robes.” A former court stenographer said in an affidavit in 2001 that during Abu-Jamal’s trial she overheard Sabo tell someone at the courthouse, “Yeah, and I am going to help them fry the nigger.”

During the third day of jury selection, Sabo stripped Abu-Jamal of his right to represent himself and interview potential jurors despite the fact that the Inquirer reported Abu-Jamal was “intent and business like” in his questioning. On the second day of the trial, Sabo removed Abu-Jamal from the courtroom for insisting that MOVE founder John Africa replace his court appointed backup counsel, Anthony Jackson. In turn, Sabo appointed Jackson to represent Abu-Jamal. This would put to rout the possibility of a fair trial.

Abu-Jamal’s first major appeal issue developed during jury selection when the prosecutor, Assistant D.A. Joseph McGill, used 10 or 11 of the 15 peremptory challenges he exercised to keep otherwise qualified blacks from sitting on this death-penalty-vetted jury. In a city with more than a 40 percent black population at the time, Abu-Jamal’s jury ended up with only two blacks. In 1986 – four years after Abu-Jamal’s trial – the U.S. Supreme Court ruled in Batson v. Kentucky that it was unconstitutional for a prosecutor to exclude potential jurors on the basis of race. The ruling was retroactive.

The second major constitutional claim that would arise occurred at the end of the guilt phase of the trial when the prosecutor referenced the appeal process in his summation to the jury. He told the jury that if they found Abu-Jamal guilty of murder in the first degree that “there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final.”

Although Officer Faulkner had been killed by Kenneth Freeman, the prosecution mounted its evidentiary case against Abu-Jamal on the perjured testimony of a prostitute informant and a cab driver with a suspended license for two DUIs who was on probation for throwing a Molotov cocktail into a school yard during a school day. Both of these witnesses had been handpicked by Giordano at the crime scene.

“The Mumia Exception”

As Amnesty International established in its 2000 pamphlet entitled “The Case of Mumia Abu-Jamal: A Life in the Balance,” his tortuous appeal process has been fraught with “judicial machinations.” Claims that won the day in other cases were repeatedly denied him.

In 1989, the Pennsylvania Supreme Court turned down his first appeal even though one of his claims was almost identical to one that had persuaded the same court to grant Lawrence Baker a new trial in 1986. In that case, Commonwealth v. Baker, the court overturned Baker’s death sentence for first-degree murder on the grounds that the prosecutor improperly referenced the lengthy appeal process afforded those sentenced to death. That prosecutor – Joseph McGill – was the same prosecutor who used similar – almost verbatim – language in his summation during both the guilt and sentencing phases of Mumia’s trial. The judge who failed to strike the language in the Baker case was the same judge who presided at Mumia’s trial, Common Pleas Court Judge Albert F. Sabo.

The State Supreme Court ruled in Baker that the use of such language “minimize[ed] the jury’s sense of responsibility for a verdict of death.” When Abu-Jamal’s appeal included the very same issue, the court reversed its own precedent in the matter, denying the claim in a shocking unanimous decision.

A year later, in Commonwealth v. Beasley, the Pennsylvania Supreme Court reinstated the death sentence of Leslie Beasley, but exerted its supervisory power to adopt a “per se rule precluding all remarks about the appellate process in all future trials.” This rule not only reinstated the Baker precedent but it ordered all prosecutors in the state to refrain once and for all from referencing the appellate process in summations to the jury. The court could have made this new rule retroactive to Mumia’s case, but did not.

As Amnesty International declared in its pamphlet about the case, the Pennsylvania Supreme Court’s judicial scheming leave “the disturbing impression that the court invented a new standard of procedure to apply to one case only: that of Mumia Abu-Jamal,” Temple University journalism professor Linn Washington aptly dubs this and subsequent court decisions denying Mumia a new trial “the Mumia exception.”

Abu-Jamal’s Post-Conviction Relief Act hearing in 1995 was doomed from the beginning when Judge Sabo – the original trial judge – would not recuse himself from the case and the Pennsylvania Supreme Court would not remove him for bias.

Abu-Jamal’s federal habeas corpus appeal – decided by Federal District Judge William Yohn in 2001 – should have resulted in at least an evidentiary hearing on Abu-Jamal’s Batson claim that the prosecutor unconstitutionally purged blacks from the jury by using peremptory strikes to exclude 10 or 11 otherwise qualified black jurors from being empanelled. Abu-Jamal’s attorneys had included a study conducted by Professor David Baldus that documented the systematic use of peremptory challenges to exclude blacks by Prosecutor McGill in the six death-penalty cases he prosecuted in Common Pleas Court in Philadelphia. Abu-Jamal’s trial was one of the six trials studied by Baldus. Judge Yohn barred the study on the erroneous grounds that the study was not from a relevant time period when, in fact, it was completely relevant. Judge Yohn’s error was egregious and could have been easily avoided if he had held one evidentiary hearing on that defense claim. But during the two years that Judge Yohn considered Abu-Jamal’s habeas appeal, he held no hearings.

The U.S. Court of Appeals for the Third Circuit should have corrected that district court mistake by remanding Abu-Jamal’s case back to Judge Yohn to hold the evidentiary hearing on the Batson claim, but in another example of the “Mumia exception,” the court instead continued the long and tortured denial of Mumia’s right to a fair trial. In a 2 to 1 decision released on March 27, 2008 that reeked of politics and racism, the court ruled that Abu-Jamal had failed to meet his burden in providing a prima facie case. He failed, the majority wrote, because his attorneys were unable to establish the racial composition of the entire jury pool.

In the decision written by Chief Judge Anthony Scirica, the court stated that “Abu-Jamal had the opportunity to develop this evidence at the PCRA evidentiary hearing, but failed to do so. There may be instances where a prima facie case can be made without evidence of the strike rate and exclusion rate. But, in this case [i.e., “the Mumia exception” is in play], we cannot find the Pennsylvania Supreme Court’s ruling [denying the Batson claim] unreasonable based on this incomplete record.”

In a nutshell, the majority denied Mumia’s Batson claim on a technicality of its own invention, not on its merits. It also broke with the sacrosanct stare decisis doctrine – the principle that the precedent decisions are to be followed by the courts – by ignoring its own previous opposite ruling in the Holloway v. Horn case of 2004 and the Brinson v. Vaughn case of 2005. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. In a Ninth Circuit Court of Appeals ruling in 1989 in a case entitled United States v. Washington, the decision stated that an appeal court’s panel is “bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions.” None of those variables were in play when the Third Circuit Court majority ruled against Mumia’s Batson claim.

Judge Thomas Ambro’s dissent was sharp: “…I do not agree with them [the majority] that Mumia Abu-Jamal fails to meet the low bar for making a prima facie case under Batson. In holding otherwise, they raise the standard necessary to make out a prima facie case beyond what Batson calls for.”

In other words, the majority, in this case alone, has upped the ante required for making a Batson claim beyond what the U.S. Supreme Court stipulated. When ruling in Batson in 1986, the U.S. Supreme Court did not require that the racial composition of the entire jury pool be known before a Batson claim may be raised. The high court ruled that a defendant must show only “an inference” of prosecutorial discrimination in purging potential jurors. Prosecutor McGill’s using 10 or 11 of the 15 peremptory strikes he deployed is just such an inference – and an extremely strong one. McGill’s strike rate of over 66 percent against potential black jurors is in itself prima facie evidence of race discrimination. Prima facie is a Latin term meaning “at first view,” meaning the evidence being presented is presumed to be true unless disproved.

In commenting on Holloway v. Horn, a Batson-type case with striking similarities to Abu-Jamal’s claim, Judge Ambro – the lone Democrat-appointed judge on the three judge panel – demonstrated just how disingenuous the panel’s ruling against Abu-Jamal’s Batson claim was. “In Holloway, Judge Ambro wrote in his 41-page dissent, “we emphasized that ‘requiring the presentation of [a record detailing the race of the venire] simply to move past the first state – the prima facie stage – in the Batson analysis places an undue burden upon the defendant.’ There we found the strike rate – 11 of 12 peremptory strikes against black persons – satisfied the prima facie burden.” In Holloway, the Third Circuit ruled that the Pennsylvania Supreme Court’s decision denying Holloway’s Batson claim was “contrary to” and an “unreasonable application” of the Batson standard.

In fact, in rendering both its Holloway and Brinson decision, the Third Circuit specifically rejected the requirement that a petitioner develop a complete record of the jury pool. In making its ruling in Abu-Jamal’s appeal, it reversed itself to make the pretext of an incomplete jury record his fatal misstep. Basing its ruling against Abu-Jamal’s Batson claim on this invented pretext demonstrated how desperate the majority was to block Abu-Jamal’s Batson claim. What the majority was implying was that Abu-Jamal’s jury pool may well have consisted of 60 or 70 percent black people and that therefore the prosecutor’s using 66 percent of his strikes to oust potential black jurors was statistically normal and did not create a prima facie case of discrimination. This hypothesis is, of course, absurd on its face. Blacks have been underrepresented on Philadelphia juries for years – and remain so today. What was likely was that the jury pool at Abu-Jamal’s trial was at least 70 percent white.

The Third Circuit – if it had followed its own precedent – would have found the Pennsylvania Supreme Court’s ruling denying Abu-Jamal’s Batson claim “contrary to” and an “unreasonable application” of the Batson standard and remanded the case back to Federal District Court Judge Yohn to hold an evidentiary hearing to determine the prosecutor’s reasons for excluding the 10 potential black jurors he struck. If that hearing satisfied Judge Yohn that all of the prosecutor’s reasons for striking potential black jurors were race neutral, the Batson claim would fail. If, conversely, that hearing revealed racial discrimination on the part of the prosecutor during jury selection – even if only concerning one potential juror – Judge Yohn would have been compelled to order a new trial for Abu-Jamal.

Abu-Jamal’s final opportunity for judicial relief was filed with the U.S. Supreme Court in November of 2008 in the form of a Petition for a Writ of Certiorari. On February 4, the high court docketed and accepted that filing. According to Abu-Jamal’s lead attorney, Robert Bryan of San Francisco, “The central issue in this case is racism in jury selection. The prosecution systematically removed people from sitting on the trial jury purely because of the color of their skin, that is, being black.”

For at least two compelling reasons, it appeared that the U.S. Supreme Court would grant Abu-Jamal’s petition. In its last term, the high court expanded its 1986 Batson ruling in its Synder v. Maryland decision to warrant a new trial if a minority defendant could show the inference of racial bias in the prosecutor’s peremptory exclusion of one juror. Under Batson, the defense needed to show an inference – i.e., a pattern – of racial bias in the overall jury selection process. Ironically, the Supreme Court’s 7-2 decision strengthening and expanding Batson’s reach was written by Justice Samuel Alito, most recently of the Third Circuit Court of Appeals.

The second reason was that the Third Circuit’s ruling denying Abu-Jamal’s Batson claim undermined both the Batson and Synder decisions by placing new restrictions on a defendant’s ability to file a Batson claim. The Third Circuit ruling against Abu-Jamal had the effect of creating new law by tampering with a long-established Supreme Court precedent.

As a result, there seemed to be something more than a remote possibility that the Supreme Court would agree to grant Abu-Jamal’s writ.

A Writ of Certiorari is a decision by the Supreme Court to hear an appeal from a lower court. Supreme Court justices rarely give a reason why they accept or deny Cert. Although all nine justices are involved in considering Cert Petitions, it takes only four justices to grant a Writ of Certiorari, even if five justices are against it. This is known as “the rule of four.”

Despite needing only four votes to have his Batson claim argued, the Supreme Court on April 6, 2009 tersely denied Abu-Jamal’s request for a writ. The so-called “liberal block” of Justices Stevens, Ginsberg, Souter, and Breyer disintegrated, yielding to the awesome political power of the “Mumia exception.”

Abu-Jamal – who turned 55 on April 24, 2009 – will, barring the most unlikely intervention by a future governor of Pennsylvania, spend the rest of his life in prison for a crime he did not commit.