No good is served by David Gilbert’s continued incarceration

This undated photo shows Chesa Boudin, second from left, fiancee Valerie Block, left, and his parents, David Gilbert and Katherine Boudin, at the Wende Correctional Facility in Alden, New York, where Gilbert remains confined. Chesa Boudin was elected San Francisco district attorney in the Nov. 5, 2019, election. He and Block are currently on their honeymoon. His parents were sent to prison for the 1981 Brinks armored car robbery murders in Nyack, New York. Katherine Boudin was paroled in 2003. – Photo: Chesa Boudin

by Cynthia Grant Bowman

Chesa Boudin was recently elected district attorney in San Francisco. His promise of a new approach to criminal justice grounded in fairness appealed to voters more than his opponents’ law-and-order model, which has failed citizens throughout the country. When he received the news, Boudin was visiting his father in an upstate New York prison.

His father, David Gilbert, has been imprisoned for 38 years; he is 75 years old. The fact that he is still behind bars is a disgrace to the criminal justice system in New York.

Gilbert was sentenced to 75 years to life under New York’s felony murder law, which holds anyone involved in a felony responsible for any death that results from it, even though they did not kill anyone, fire any shots, possess a weapon, or have any intention, or even expectation, that anyone would be killed. Gilbert and other former members of the Weather Underground served as getaway drivers for a botched robbery by the Black Liberation Army, a group formed in the wake of the murders of numerous Black activists, such as Malcolm X, Martin Luther King Jr., Mark Clark and Fred Hampton. A Brink’s armored car guard and two Nyack police officers were killed. Gilbert was unarmed and not involved in the shooting.

The felony murder doctrine is unique to the United States. It rips apart the traditional connection to responsibility and intent in our theories of criminal punishment. England abolished felony murder in 1957; Ireland and India have abolished it as well. Felony murder was declared unconstitutional by the courts in Canada in 1990, and several U.S. states have moved to abolish the doctrine, either by legislation or in judicial holdings. When one tells foreign legal scholars about felony murder, they are shocked.

Little Chesa Boudin goes hiking with his dad, David Gilbert, shortly before David was arrested 38 years ago.

When Gilbert was incarcerated, his son Chesa Boudin was an infant. While in prison, Gilbert managed, with the help of New York’s enlightened system of trailer visits with immediate family, to help parent Boudin. He imparted to his son both his love for the child and his social justice values, which include the preciousness of life and the errors in his own earlier political vision. Boudin’s devotion to public service is no doubt influenced by what he learned from his father.

While remaining free of disciplinary violations for 38 years, Gilbert also co-founded a trailblazing program of AIDS education in prison, tutored countless other prisoners, and facilitated anti-violence programs.

Like so many other aging prisoners in the New York system, his health is declining. It makes little sense to continue to imprison older people who have served lengthy terms, pose no threat to the public, acknowledge and accept responsibility for the harms they caused, and require costly medical care for which the state must pay.

We are law professors who have spent time visiting Gilbert in prison – one of us five or six times a year over the past five years. Many other names could be added to ours as well. Everyone who meets Gilbert is impressed by his deep thoughtfulness, compassion and profound remorse for his role in the tragic deaths of three people – and for the pain their families have suffered. He listens to visitors intently and helps them think through their problems, whether personal, political or intellectual. One such visitor describes him in a letter as “a kind and peace-loving person, concerned about the well-being of those around him, interested in my own personal and professional responsibilities, and deeply remorseful for his participation in the Brinks robbery.”

Gilbert has paid a heavy price for his crime. We believe that it is past time for him to be released from prison. We are absolutely certain that granting him clemency would present no danger to society. Rather, he would contribute his many talents to his family, friends and the community at large, and his release would send a message of hope to the many elders serving lengthy sentences across New York.

Cynthia Grant Bowman is the Dorothea S. Clarke Professor of Law at Cornell Law School. Also contributing to this were Cornell law professors Aziz Rana and Beth Lyon. This story first appeared in the Albany (New York) Times Union, at https://www.timesunion.com/opinion/article/Commentary-No-good-is-served-by-David-Gilbert-s-14894188.php.

David Gilbert – A Lifetime of Struggle from Freedom Archives on Vimeo.

[PERMISSION PENDING] This is a rare opportunity to go behind prison walls for a discussion with David Gilbert, a lifelong anti-imperialist activist – one of the longest held in the world – and former member of the Weather Underground Organization. David is now serving a life sentence in prison for activities in support of the Black Liberation Movement. He explains why he joined the movement, what led him to go underground, and frankly discusses the strengths and errors of the movement and the WUO. As a teenager David began working against the Vietnam war and for Black civil rights and later became a leader of the Columbia University student strike and Students for a Democratic Society. He was an organizer at a time of great social upheaval. In 1969, 120 cities burned in Black uprisings, and in the same period 400 campuses organized student strikes against the Vietnam War.

This video was edited in March 2002 by Claude Marks of Freedom Archives and Lisa Rudman, and is based on an interview done in July of 1998 at Great Meadows Prison, Comstock, New York, by Sam Green and Bill Siegel. It was filmed by Federico Salsano.