Judith Armatta

In the 1970s when I was a prisoners’ rights attorney, Oregon had three prisons – the old maximum security prison, a newer medium security lock-up, and a place to hold the far fewer women who were incarcerated. Today, there are 14 prisons, euphemistically called “correctional institutions.” The big prison building frenzy grew out of the War on Drugs and the tough on crime movement in the 1980s and 1990s (with its beginnings in the 1960s).  States passed ‘three strikes you’re out’ laws, mandatory minimum sentences, lengthened sentences, did away with good time, increased remand of juveniles to adult court, and criminalized more and more behavior. The result left the U.S. with 25% of the world’s prisoners (and only 5% of its population). The cost and ripple effects were enormous.

Highly significant, but little noticed, was a historical change in our criminal justice system, as power shifted from judges to prosecutors. Today, prosecutors decide what charges to file (regularly overcharging to coerce a plea) and what kind of plea bargain and sentence to offer. At least 90% of cases are resolved through a plea bargain, giving the lie to the right to trial by jury. Mandatory minimums attached to certain crimes tie judges’ hands – and the prosecutor emerges as the most powerful person in the criminal justice system.

Over the last few years, a widespread, bipartisan movement for criminal justice reform has emerged. Usual adversaries like the American Civil Liberties Union (ACLU) and the Koch Brothers have joined forces, recognizing that our current policy of mass incarceration is draining economic and human resources, destroying communities, and not achieving the kind of safe and democratic society we want. A number of states preceded federal reform by acting to reduce their prison populations, led by Texas, New York, and New Jersey. Oregon might well have been among them, had it not been for opposition from district attorneys.

This week, the ACLU of Oregon released a report exposing prosecutorial obstructionism that severely limited criminal justice reform efforts initiated by former Governor John Kitzhaber in 2010. For three years, a commission he appointed studied mass incarceration in Oregon and how to reduce it, given its unsustainable cost. District attorneys were a part of that discussion until, at the 11^th hour, they walked out. The commission submitted its report to the governor who designed a fairly comprehensive reform agenda to submit to the legislature in 2013. The prosecutors attempted to bury it. In the end, as the ACLU report reveals, they made a deal with the governor. For removal of certain reforms, including one that would limit Measure 11’s automatic placement of juveniles in the adult system, the district attorneys’ association would not oppose the bill. But, the bargain went one step further. It required the governor to agree not to introduce any further sentencing reform for five years. David Rogers, the report’s author and executive director of the ACLU of Oregon, states: “Such an agreement was unprecedented.” That agreement should not bind Governor Kate Brown, however.

While the governor’s 2013 legislation has slowed growth of the prison population, the state still had to open another prison this year. With Oregon’s continually increasing population, the Department of Corrections (DOC) predicts continued growth of the prison population. While the percentage of men sentenced to prison is falling, that of women is rising. The DOC does not know where they will put them. The ACLU report concluded that, “It is hard to imagine we will significantly and sustainably make our approach to public safety and crime more effective and more just until we see a different kind of engagement from and with district attorneys.”

Contributing to the problem of prosecutors’ obstructionism is their near lack of accountability to the public. While district attorneys are elected in all of Oregon’s 36 counties, they mostly run unopposed (the report found that was true in 78% of elections over the past ten years). In addition, the practice of a D.A. stepping down before her or his term is over allows the governor to appoint a replacement, giving that person (usually a chief deputy in the D.A.’s office) an advantage in the next election. The appointment process lacks transparency. Are there criteria by which potential appointees are judged? We don’t know. Nor does the general public know much about the district attorneys they elect. The ACLU report calls for public education about the role of the district attorney and the philosophies and backgrounds of those seeking the office.

As the report also makes clear, there are progressive district attorneys who have developed smart on crime programs. Over my career, I’ve had the honor of working with some of Oregon’s best prosecutors. They should be a role model for those up and coming deputy D.A.s instead of ‘tough on crime’ obstructionists stuck in the last century.

The ACLU report can be downloaded at:

http://aclu-or.org/sites/default/files/Roadblocks_to_Reform_Report_ACLUOR.pdf

            Mary Mallon, born in 1869, is best known as “Typhoid Mary.” She is iconic for allegedly  spreading typhoid to 51 people, three of whom died. Since there was no known cure, Mary was isolated for nearly three decades of her life. Today, we apply the term to people who infect (wittingly or unwittingly) us with information we otherwise might avoid hearing. That, at any rate, is the way in which I use the term here.

            When I was living in the Balkans, then in The Hague reporting on the International Criminal Tribunal for the Former Yugoslavia, I wrote regular letters to a group of friends and colleagues about my experiences. They were mostly disturbing, focusing as they did on war crimes, genocide, torture, and crimes against humanity. I was grateful to those recipients of my missives who actually read them, though they could hardly have brightened their days. One brave friend, who may have read them all when he could have been watching basketball or hanging out at the local pub, endearingly described me as “The Typhoid Mary of the Internet.” It pretty much fit and we are still friends. So, when I decided to write a blog, an amended version of the title seemed apropos. Henceforth, this blog will be known as belonging to “The Typhoid Mary of the Blogosphere.” Those with courage enter here.

            My intent is to blog about the subjects that stir my conscience, yet leave me feeling helpless. Writing is how I know to influence people -- revealing what is hidden, witnessing what is distressing, offering suggestions for change, passing along the wisdom of others, and most of all, telling stories. Writing moves me from despair. In the best of circumstances, it means I am not alone with sadness and anger that heavies my soul. Julian Beck in The Life of the Theater wrote an exhortation that has guided me since I first read it over four decades ago:

“I see all the danger, the dissolution, I am not content, I recognize the emergency in every house and place….

It is not what we do not know but what we do not feel.

The Theatre of Emergency is the theatre of feeling.

For a feelingless society, feeling.

For a fractured people, unification.

Realization. The people as one, one.

A theatre not for people, but at one with people.

Mending the gap between human nature and the human mind. Stein. We know what class hatred and race hatred are, but we can’t get ourselves to really do anything beyond petty liberal gestures because we don’t really feel what we believe. To change the world.

The theatre of change. Of emergency. Of feeling.

When we feel, we will feel the emergency: when we feel the emergency, we will act: when we act, we will change the world.”

            Yet I do want to be a comedienne. I’d love to make people laugh. I want to laugh more myself. Another adage I try to live by is attributed to Emma Goldman: “If I can’t dance, I don’t want to be a part of your revolution.”

            I hope some of you will take this journey with me. It is not just a telling, but a hearing. I am still teachable (I think). I know that something new comes from respectful discussion among many. So, let’s see what we can create.

Good news, folks, though not unexpected! I mean, what would you do??? The Office of the Prosecutor at the ICTY (now MICT) has announced that they will appeal the Seselj judgment. To do otherwise would be shameful. Here’s the OTP announcement:

Stalin’s judges couldn’t have done a better job. On March 31, 2016, a trial chamber of the ICTY acquitted paramilitary leader Vojislav Seselj of all charges. In doing so, they ignored and thereby undermined the entire jurisprudence of the ICTY over the last two decades. They also ignored the facts long established in other cases. As Judge Flavia Lattanzi stated in her scathing dissent: “[T]he majority sets aside all the rules of international humanitarian law that existed before the creation of the Tribunal and all the applicable law established since the inception of the Tribunal in order to acquit Vojislav Šešelj.” And, as Jelena Subotic wrote for Balkan Insight: “The embarrassment is in the rewriting of the history of the Yugoslav breakup in a manner that is not only outside all major scholarly consensus, but also in direct contradiction with what the ICTY itself has concluded in its previous cases.”

The Vojvoda (duke), so annointed by his Serbian Chetnik movement, led the Serbian Radical Party and was a chief propagandists for ethnic cleansing of Bosnian Muslims and Croats from territories in the former Yugoslavia in pursuit of a Greater Serbia. He formed his own paramilitary group early in the wars. Called Chetniks, the White Eagles, or Seseljevci (Seselj’s men) they were recruited from the dregs of society. Urged on by Seselj’s dehumanization of Croats (comparing them to “primates” and “vampires”) and Bosniaks (“balija” or “pogani” which he translated as excrement), they were implicated in a number of massacres, including at Ovcara following the siege of Vukovar, where hospital patients as well as prisoners of war were rounded up and executed.

Judges Antonetti and Niang concluded that the prosecution did not establish the existence of “a widespread and systematic attack against the non-Serb civilian population in large areas of Croatia and BiH [Bosnia and Herzegovina] . . . .” Instead, the judges held “that there was an armed conflict between enemy military forces with civilian components.” In other words, it was a legitimate war caused by the unlawful secession of Croatia and BiH. Under this interpretation, the displacement and deaths of thousands of civilians were collateral consequences, certainly not the main focus of forces seeking to establish a Greater Serbia. That Serb forces provided buses to take non-Serb civilians away from territories intended for Serbs alone was a humanitarian gesture to help them “voluntarily” leave combat zones. No matter that only non-Serbs were accommodated. It could not be considered ethnic cleansing, according to the two judges in the majority.

Astonishingly, the court felt comfortable in reaching this conclusion despite the fact that every other relevant decision since the ICTY’s inception, including the Karadzic judgment last week, recognized the existence of widespread and systematic attacks against non-Serb civilians in Croatia and Bosnia-Herzegovina. The Karadzic trial chamber, as others have before, found that planned attacks against this civilian population were part of a joint criminal enterprise that included Seselj. For judges Antonetti and Niang, it might just as well have been a poker party.

I weep for the (invisible to the court) victims of the Greater Serbian project who have found little justice from the first international criminal tribunal since WWII. I weep for the ICTY, established with such hope – to end the 20th Century Balkan wars and reconcile the peoples who once lived in a country admired for its multi-ethnicity. I weep for international justice. With this decision and the turn taken by the Appeals Chamber in 2009 away from superior and command responsibility, lady justice (whose statue adorns the grand staircase of the International Court of Justice in The Hague) lies bleeding from her wounds. Can the permanent International Criminal Court bind them up to keep hope alive? Is there any chance at all that an appeal of the Seselj judgment would be successful and not do further damage to the Tribunal, international justice, and, most of all, the victims and survivors of these terrible wars?

http://www.sense-agency.com/icty/judgment-miscarried.29.html?news_id=16997

http://www.balkaninsight.com/en/article/how-seselj-s-verdict-got-history-terribly-wrong-04-01-2016

http://www.icty.org/x/cases/seselj/tjug/en/160331_judgement_summary.pdf

http://www.icty.org/en/press/information-on-the-partially-dissenting-opinion-of-judge-lattanzi-in-judgement-in-the-case-of