Seeking Sensible Justice

Good Night Justice, Good Luck Reform

noreply@blogger.com (Eric John Sponheim) — Tue, 01 Jan 2013 02:07:00 +0000

As Isaac Newton observed long ago, a body in motion tends to stay in motion. A corollary might be that what’s true of physical bodies is also on the Internet. And so it’s taken me longer than I originally intended to wind down this blog.

At the end of February this year, I expressed my intention do so. After 3 1/2 years, I felt the sense of a blog’s ending. Now, at year’s end, I’m making one last post before putting Piercing the Panopticon on the shelf.

The goals I set for myself have largely been achieved. In September 2010, I summarized them in a post titled simply “Why I blog.”

The foremost goal was to seek ways to resolve social conflict that point beyond the prison paradigm. Consequently, one of the recurring themes of the blog has been alternatives to incarceration. I will be seeking other platforms to pursue this further.

My other goals for the blog were much more directly achievable.

One goal was to showcase my subject matter knowledge of criminal justice by writing about topics such as mens rea, mandatory minimum sentences, and juvenile vs. adult crime. I gained this knowledge first as a law student, then later as a legislative counsel and program specialist in state government. And I intend to use it by teaching in a criminal justice program at a college or university.

I also sought to give voice to the value of prison ministry in keeping hope alive for people in prison. My active role as a board member in Prison Congregations of America continues and is also directed toward this goal. I’m seeking to engage more fully with the person of Jesus Christ — and empower others to do so as well.

Finally, I tried to have fun by enjoying writing for its own sake about topics I’m passionate about. That is why, for example, I tried to close with a flourish with a month of Harry Potter-influenced posts on criminal justice subjects. To be sure, this made for some highly idiosyncratic writing. Harry Potter and Alexis de Tocqueville are admittedly an unlikely duo.

Yet people seemed to find this blog through Web searches nonetheless. From December 15, 2008 through tonight, I wrote 346 posts and was the recipient of two guest posts from friends. For those 348 posts, there have been over 10,425 page views.

When I have identified another blog platform, I shall post a link on this one. For now, I would simply refer interested readers to my Twitter account, @areteave.

The “Safety of the Keeps,” from Azkaban to Sing Sing

noreply@blogger.com (Eric John Sponheim) — Sat, 29 Dec 2012 07:07:00 +0000

Alexis de Tocqueville’s Democracy in America is one of the most celebrated books ever written about our country. Published in two volumes, in 1835 and 1840, it is still widely read, particularly by political scientists.

The book has endured because it was a uniquely probing examination of the democratic prospect. As a liberal French aristocrat, Tocqueville sought to extract insights from the New World to understand how the ascendant values of liberty and equality would be likely to fare in the Old.

In search of such insights, Tocqueville arranged an extended visit to America. The occasion was a commission from the French government to study America’s penal system. Tocqueville and a colleague made the visit in 1831 and duly published a report the following year.

In Newjack, his account of working as a guard at New York State’s Sing Sing prison in the 1990s, journalist Ted Conover includes this quotation from Tocqueville’s prison report:

“The safety of the keeps is constantly menaced. In the presence of such dangers, avoided with such skill but with difficulty, it seems to us impossible not to fear some sort of catastrophe in the future.”

And indeed, serving as a correctional officer is still generally hard, dangerous work. That is precisely one of the reasons why Conover wanted to write about it, to give society’s underappreciated proxies a voice.

In the imaginary world of the Harry Potter books, the issue of safety for prison guards is temporarily solved through a Faustian bargain with horrible creatures known as dementors. Author J.K. Rowling depicts them as embodiments of utter despair, intent on extinguishing all hope and joy in the souls of muggles and magical folk alike.

As the tale unfolds, Harry and his friends find ways to confront the dementors by summoning happy memories and focusing the life-force contained in them. When you think about it, this isn’t merely a plot device. It’s a strategy that makes a lot of psychological sense in the real world, too.

Aside from prison guards, here is the broad thematic connection I see between Tocqueville and J.K. Rowling. Each explores themes of democracy and aristocracy against a backdrop of tumult.

For Tocqueville, the tumult was the bloody excesses of the French Revolution. These excesses informed his careful analysis of how democracy tends to operate. Rowling, by contrast, critiques the dreadful excesses of Voldemort’s fascist power grab for “purebloods.”

Beware the Snitch!

noreply@blogger.com (Eric John Sponheim) — Mon, 17 Dec 2012 02:05:00 +0000

The world “snitch” is an old synonym for “tattletale.” Webster’s New Collegiate Dictionary dates its usage to 1785.

In a legal context, however, it’s a relatively recent word. It isn’t even in the Fifth Edition of the widely used Black’s Law Dictionary, published in 1979. In that edition, only a generation old, the alphabetical listings jump from “smut” to “so” without an intervening snitch.

In the 1980s, however, the word came into much wider usage. This was principally because as America’s ill-fated “War on Drugs” escalated unimaginably, the use of informers to find (or fabricate) evidence against drug offenders became widespread. Someone who played the role of informer, usually in return for a reduction in his or her own sentence, was and is known as a snitch.

PBS explored the problem in considerable depth in a 1999 documentary called simply Snitch. The program also explored the unfairness of many mandatory minimum penalties in drug cases.

Producer Ofra Bikel’s interest in the issue was galvanized after hearing the story of an 18-year-old young man who was set up by someone he thought was a good friend. When the 18-year-old got some LSD for this “friend,” it turned out that the person was in cahoots with federal drug enforcement agents — and desperate to get a break on his own drug sentence.

To Bikel, it seemed crazy that this 18-year old with no previous convictions should suddenly be sent away for a minimum of 10 years on evidence supplied by a snitch. After all, a snitch has a tangible incentive to lie in order to catch a break from prosecutors in his or her own case.

I saw Snitch in 1999, when I was living in Des Moines and working for a special task force created by the Iowa Legislature to review criminal sentencing policy. But I hadn’t thought about it for years — until I saw the current USA Today article on snitches in the federal justice system.

The USA Today piece examines how informers in federal cases essentially buy reductions in their sentences by providing information to prosecutors about other defendants. According to USA Today, one in eight federal prisoners is engaged in this type of pay-to-snitch venture.

To be sure, in this context “pay” doesn’t mean money changing hands. But a reduction in a prison sentence for someone looking for leniency in his or her own case is definitely a powerful incentive to cooperate with authorities. And it can easily cross the line into telling them what they want to hear, regardless of the truth.

How in the world Harry Potter author J.K. Rowling came to use the word “snitch” to refer to a peculiarly elusive ball in the game of Quidditch, I do not know. Interestingly, though, in Quidditch, the snitch is pursued by two players, one on each side, who are called Seekers.

These Seekers are not searching for truth; they simply want the snitch. Analogizing to an adversarial criminal justice system, the problem is that each side has such an incentive to cherry-pick the truth. Instead of seeking the truth of the matter, prosecutors too often try to use snitches to notch another “win” in the competitive games they play.

At stake in those games is much more than victory in a Quidditch match. People’s liberty is on the line, with the prospect of spending years behind bars because a snitch made up or embellished a story about them, just to stave the snitch’s own skin.

Probable Cause in the Wizarding World

noreply@blogger.com (Eric John Sponheim) — Sat, 15 Dec 2012 06:52:00 +0000

“Odi et amo.” These short yet powerful words, from the Latin poet Catullus, can be expressed almost as succinctly in English: I love and I hate.

Catullus wrote two millennia ago. Yet such strong emotion is inevitably appealing, then and now. Small wonder that the self-promoting entertainer Cher once borrowed them to promote a concert tour.

Certainly such primal feelings are one of the key drivers of the hugely popular Harry Potter books and movies. Harry loves his friends, particularly Ron and Hermione and, later in the series, Ginny.

But he also hates his enemies: Voldemort, who killed his parents, and, on scene at Hogwarts, Severus Snape and Draco Malfoy.

Last night, I watched The Half-Blood Prince on DVD for the second time. Midway through the film, Harry, Ron, and Hermione, along with other students, are returning to Hogwarts from a visit to the nearby village. Suddenly, a student walking up ahead, Katy Bell, is swept up into the air, clearly possessed in some way.

Katy had been cursed with a spell (a form of assault) and made to carry a necklace intended to kill Prof. Dumbledore, the beloved Hogwarts headmaster. Beloved, at least, by all who truly live in the light.

The dark arts are fully unleashed, however, with Voldemort’s return. Harry Potter’s classmate Draco Malfoy is drawn, or chooses, to do the “dark lord’s” bidding.

After five years of tangles with Malfoy (and Malfoy’s father), Harry has deep-seated personal reasons to suspect Draco of committing the crime of cursing Katy. But standing before the highly rational and fair-minded Professor McGonagall and the saturnine Snape, he struggles to articulate his reasons.

McGonagall asks who could have done it. Harry blurts out that it was Malfoy. Snape challenges him to state his evidence. But Harry can reply only, “I just know.”

Even in the wizarding world, probable cause requires more than that.

The Grinch: A Robber Reforms

noreply@blogger.com (Eric John Sponheim) — Wed, 28 Nov 2012 02:22:00 +0000

He famously stole Christmas.
And for well over 50 years,
The Grinch has carved a niche
Among America’s fondest fears.

From the Dr. Seuss original to Chuck Jones’s animated movie in the 60s to Jim Carrey’s full-length feature film, the tale of the redemption of this peculiar looking malefactor has fascinated audiences of all ages.

Tonight, as my family, flipped channels, we focused for a moment on the Chuck Jones version on ABC television. The scene we saw showed the Grinch at his seemingly irredeemable worst: taking the very last Christmas present from a tiny Who child — and blatantly lying to her about it.

Ah, but what a turn of events is his eventual transformation. The fearsome, nearly solitary creature who swooped in seeking to steal others’ tangible expressions of joy is redeemed by intangible expressions of joy.

Interestingly, for purposes of this blog, his change did not come from incarceration. It came from finding a social community whose love of life saved him from himself.

A Few Factoids From the Life of Jeremy Bentham

noreply@blogger.com (Eric John Sponheim) — Thu, 22 Nov 2012 05:18:00 +0000

Jeremy Bentham’s remarkable life and work included much more than a sketchy design for a “panopticon” prison.

A cursory glance at Bernard Crick’s lengthy entry on Bentham in Makers of Nineteenth Century Culture* immediately yields some eye-opening facts.

To wit: Young Jeremy was 13 when he began attending Queen’s College, Oxford. And he was only 16 when he graduated. Such ages were normal for schooling at the time. Yet they seem downright strange to contemporary American sensibilities.

If he lived in our day, one suspects Bentham would be all over the scientific research on brain development among juveniles. If he were American, he would be insisting that the Supreme Court apply this research to the interpretation of cases on “juvenile lifers” and other related issues.

Consider also the glimpse Crick’s essay provides of the provenance of Bentham’s panopticon plan. The model for the panopticon, Crick says, began as a plan for cooperative settlements created not for prisoners, but for the unemployed.

Bentham worked on the panopticon idea off and on for twenty years. He was, Crick comments, a relentless perfectionist about this work, always struggling for definitive precision before considering it in finished form. It took a concerted effort by a host of followers to eventually apply and popularize it.

About Bentham’s famous donation of his skeleton to the University of London for scientific study, Crick has not a word to say. But if he had included a mention of this, I’m sure he would have included a telling detail or two.

*Makers of Nineteenth Century Culture, 1800-1914, ed. Justin Wintle (London, Boston, Melbourne and Henley: Routledge and Kegan Paul, 1982).

When Does a Life Become No Longer Worth Saving?

noreply@blogger.com (Eric John Sponheim) — Mon, 19 Nov 2012 03:18:00 +0000

A 16-year-old boy drinks alcohol, gets behind the wheel of a pickup truck and crashes. The boy survives, but a friend of his who was a passenger is killed.

How should the law respond?

An Oklahoma judge decided that the boy, now 17, deserved a break. Though the boy pleaded guilty to first-degree manslaughter, the judge sentenced him to an unusual probation arrangement. Some of the conditions are pretty standard, such as wearing a monitoring bracelet and participating in counseling.

But Judge Mike Norman, 69, also sentenced the teen to attend a church of his choosing every week. From the ABC News account, the duration of this requirement was unclear. Presumably, however, it is for 10 years, as that is the length of the deferred sentence.

Naturally a sentence like this raises constitutional eyebrows about violation of the separation of church and state. Prof. Doug Berman, for example, casually implied as much when noting the case in his sentencing law blog.

A legal challenge is not likely to be coming from the defendant, though. “I usually represent outlaws and criminals,” his attorney told a local paper. “This is a kid that made a mistake. I think he’s worth saving.”

These words are very telling — not so much for what they say about this case, but for what they imply about most of the others. For most of the others are not saved. The common pattern is for them to become enmeshed in the justice system, with the chances of getting out diminishing with each repeat offense.

Yet if a 17-year-old with an otherwise clean record is worth saving, then what about an 18-year-old? What about a 17-year-old with a few blemishes on his or her record? And so on.

Questions like this remind me of the dialog between Abraham and God presented in Genesis 18. God is poised to destroy the cities of Sodom and Gomorrah for wanton sinfulness. Abraham intercedes, arguing that is would be wrong to do so if a certain number of righteous people can be found there.

Abraham eventually gets God to agree to forego forsaking the two cities if ten righteous people can be found there. Eventually Sodom and Gomorrah met fateful ends anyway. But Judge Norman would surely approve of Abraham’s attempt to intercede.

The Empty Chairs

noreply@blogger.com (Eric John Sponheim) — Mon, 05 Nov 2012 02:35:00 +0000

Why was criminal justice not an issue in the presidential debates? After all, there are over two million people in jail or prison in America. Add in probation and parole, and the total number under some form of correctional supervision is, in round numbers, a whopping seven million.

And in a John Donne, no-man-an-island sense, it doesn’t stop there. The families of inmates and probationers are also greatly affected by sentencing and corrections policy.

Indeed, so are we all, because we, as a society, set the sentences. Correctional officers and other justice system professionals are merely our proxies on the front lines.

Yet, as a recent column in the Huffington Post put it, on the issue of mass incarceration, there were two empty chairs at the presidential debates.

There are also empty chairs around many family tables because so many people are in prison.

Sex Offender Restrictions on Halloween

noreply@blogger.com (Eric John Sponheim) — Thu, 01 Nov 2012 02:19:00 +0000

Restrictions on what registered sex offenders whose crimes were against children can or must do on Halloween are common in a number of states. The constitutionality of such restrictions has been intensely litigated and is far from a settled question.

On October 29, a federal judge in California ruled on the issue. The holding was that sex offenders are not required to post signs outside their houses that say “no candy.” But the judge ruled that a local ordinance with several similar restrictions could be upheld.

The other restrictions prohibit outdoor lighting or decorating of a sex offender’s house on Halloween, as well as answering the door to give out candy to trick-or-treaters.

CNN’s online account elicited numerous comments. The question of protecting children versus unfairly branding sex offenders living in the community prompts strong feelings on all sides

Living in Truth, on and off the Field

noreply@blogger.com (Eric John Sponheim) — Mon, 29 Oct 2012 13:21:00 +0000

Thomas Mann, Vaclav Havel and other artists have agonized over the connection between art and life. Havel, the Czech dissident-turned-president, argued for the goal of living in truth.

To live in truth, one’s inner and outer worlds must be integrated. When that happens, Havel suggested, a life could become a work of art.

How, if at all, does this reasoning apply to athletes? For big-time athletes, like high-profiles, are often in the public eye, moving in worlds that can seem so different from ordinary reality.

In Moneyball, the versatile journalist Michael Lewis tells the story of Billy Beane, a peculiar case study of bringing art and life together in the sports word. Annointed by baseball scouts as a future superstar while still a teenager, Beane never fulfilled that promise on the field.

As a general manager, however, Billy Beane has been instrumental in reinventing the tradition-bound game of baseball. As Lewis shows in Moneyball, Beane has led the Oakland A’s to surprising success by his willingness to use statistical analysis to guide player acquisitions.

Lewis recounts how, in the early 1980s, Beane was overshadowed in the New York Mets minor league system by two other players, Darryl Strawberry and Lenny Dykstra. Strawberry and Beane were drafted the same year, both in the first round, and billed as future superstars. Dykstra and Beane were roommates and friends.

Dykstra, in particular, was a challenge for Beane, for Dykstra seemed to have a head for the game that maximized his minimal talent. For Beane, it was the opposite, as he continued to get minimal results from what seemed to be maximum talent.

Off the field, however, in the game of life, the tables have turned. Strawberry and Dykstra have each done prison time. Strawberry’s issue was drugs. Dykstra’s issues were many, including drugs, sex offenses, and financial crimes.

Earlier this year, when Dykstra was sentencing to three years in prison for grand theft auto, the Village Voice said it was the culmination of what was essentially a 20-year crime spree.

Meanwhile, Beane played played by Brad Pitt in a movie version of Moneyball and got his A's back in the playoffs again, despite the usual financial challenges.

Chris Brown's Sentence: Wake Up Call Needed?

noreply@blogger.com (Eric John Sponheim) — Sun, 28 Oct 2012 00:00:00 +0000

Community service has become an accepted part of alternative sentencing. It’s often part of a probationary sentence that keeps someone out of prison.

When one stops to think about this, however, it’s deeply odd. Serving the community by speaking to school groups or picking up trash on public land should be considered a privilege, not a burden. Indeed, it’s a privilege millions of people embrace voluntarily, usually through the nonprofit group of their choice.

Those people are rarely written about in the media. But the media — particularly the entertainment media — makes sure we know about wayward celebrities like Chris Brown.

Brown is the young singer who physically assaulted his then-girlfriend Rihanna in 2009. After pleading guilty to a felony assault charge, he began serving a 5-year probationary sentence. The sentence included a court-ordered requirement to perform at least 1,440 hours of community service.

For the past three years, he has been doing several different jobs in the Richmond, Virginia, area. These include cleanup work in police stations and janitorial duty at a daycare.

But the judge in Los Angeles County who is responsible for signing off on Brown’s sentence completion is not so sure his records are accurate. The number of hours Brown has racked up in the last seven months is supposedly 701, according to the Richmond Police. Yet as media reports pointed out, it previously took him 28 months to reach that number.

Plus, during the seven months when Brown has purportedly been putting in all that time picking up trash, he’s also been taking ample time to sing before large audiences and (the tablids speculate) maybe even start romancing Rihanna again.

There seems to be something wrong with this picture. The judge in Los Angeles has therefore ordered a further review of Brown’s records to determine whether he has violated his probation.

Chris Brown’s most well-known song is perhaps Don’t Wake Me Up. It is quite possible, based on the record review, that someone — probably his attorney — will need to wake him from the delusion that his sentence for beating up Rihanna is over so soon.

Meeting Maximum Bob (a bit belatedly)

noreply@blogger.com (Eric John Sponheim) — Fri, 19 Oct 2012 23:49:00 +0000

Elmore Leonard is widely acknowledged as a master of crime fiction. Indeed, he’s a versatile writer who’s also accomplished in other genres, including Westerns.

I’ve enjoyed his work both on the page and in film adaptations. Over twenty years ago, I was tremendously impressed by the smooth writing and daring plot twists in the 3-novel collection Gold Coast.

On film, Get Shorty, with John Travolta and Danny DeVito, was a hoot. Out of Sight, with an emerging-from-ER George Clooney and a young Jennifer Lopez, was splendidly executed as well.

There is also a film version of Leonard’s 52 Pickup, which I haven’t seen. All year, however, I’ve been intending to pick up the book. It seemed fitting to do so, because that’s my age.

So today, I tried two places to pick up 52 Pickup. First I tried Midway Book, a venerable and well-stocked used bookstore in St. Paul’s Midway area. No luck.

Next I tried the Galaxie Library in Apple Valley, a St. Paul suburb. No luck there either.

There was, however, a definite silver lining for the independent scholar who blogs about sentencing policy. One of the Elmore Leonard titles that were on the shelf was Maximum Bob — a book whose very title points to teachable moments about judicial discretion.

Turns out there was a short-lived TV series in 1998 based on the book. I missed that entirely at the time. But ’98 was the year that I began my stint with the Iowa Legislature on its special sentencing commission. Considering that judicial discretion was a key topic on the commission, I’m surprised Maximum Bob didn’t come up during our work.

Christopher Nolan's Kangaroo Court

noreply@blogger.com (Eric John Sponheim) — Mon, 01 Oct 2012 00:42:00 +0000

The latest Batman movie carries the burden of being the occasion for the murderous assault in Aurora, Colorado, in July. A deranged graduate student named James Holmes killed 12 people and injured 59 in a shooting spree in a suburban theater during an opening-weekend screening of the film.

As the legal process for Holmes takes its course, the film itself is winding down its theatrical run. With video and other distribution channels in the pipeline, films don’t stay very long in theaters these days. Perhaps not surprisingly, then, the theater in Burnsville, Minnesota, where I saw The Dark Knight Rises was one of the smallest I’d ever been in.

It was so small that the disparity between the large screen and the tiny room was quite incongruous.

Rather incongruous, too, is director Christopher Nolan’s plotting of the film. Strangely enough, in a movie featuring such over-the-top violence, Nolan at times seems on the verge of raising the question of whether violence is ever justified — even when responding to violence.

Unfortunately, that theme never really crystallizes. But the film contains some memorable individual scenes. Naturally, for purposes of this blog, I was struck by the sessions of the kangaroo court that is capable of issuing only death sentences.

Ostensibly, prisoners are given a choice: exile or death. Exile, however, turns out to be over the not-quite-frozen river, and therefore a de facto death sentence.

What was the context, I wonder, in which the term “kangaroo court” was coined? It dates, according to Webster’s, to 1853.

The larger question, however, is whether the entire film is a type of kangaroo court. One definition of such a court, after all, is of "a judgment or punishment given outside of legal procedure." In effect, the entire film comprises that kind of court.

10,000 Lakes, 10,000 Rounds of Ammunition

noreply@blogger.com (Eric John Sponheim) — Sun, 30 Sep 2012 04:02:00 +0000

Fatal shootings in or near workplaces by disaffected former employees seem to have become part of the accepted backdrop of American life.

Only a month ago, in New York City, a disturbed former clothing designer lay in wait outside the Empire State Building for the co-worker whom he blamed for the loss of his job. The 58-year-old former employee shot and killed his intended victim — then was killed by police himself after taking out his gun again when they confronted him.

Nine bystanders were injured, presumably by the barrage of bullets (16 rounds) fired by police. This all went down immediately outside of one of America’s signature tourist attractions.

Two days ago, another horrific workplace shooting unfolded in a different American city. This time the scene was a sign manufacturing business in Minneapolis. A 36-year-old engraver who was being let go fatally shot five people and injured three others. He then descended to the building’s basement and killed himself.

Today’s account in the Star Tribune contained numerous storylines that could be explored in greater depth.

One is the ubiquity of guns in the U.S. today. The Minneapolis gunman used a 9 mm Gluck revolver. Police also found a second gun in his house, as well as packaging for 10,000 rounds of ammunition.

Another theme in these shootings is the pressure our hard-driving work culture exerts on all concerned. When the drive for success is so palpable in the workplace, it stands to reason that the chances of someone snapping increase.

Most people don’t snap. But why is it that some do? In some cases, mental illness is surely a precipitating factor.

The parents of the shooter in the Minneapolis case had apparently tried to get their son into counseling. He had resisted their efforts, however, and distanced himself from them.

In their statement to the media, the parents noted that their son’s battle with mental illness was “not an excuse for his actions, but sadly, may be a partial explanation.”

Indeed it may.

Certainty vs. Severity

noreply@blogger.com (Eric John Sponheim) — Sat, 29 Sep 2012 04:38:00 +0000

American legislatures have constantly added to sentence lengths for a host of crimes in the last 25 years. In many states, this has been combined with a decrease in the power of the parole board due to determinate sentencing. The resulting increase in length of stay has been a key driver of the prison population boom.

In theoretical terms, the excessive focus on the severity of punishment has led farther and farther away from the realization that the Enlightenment thinker Cesare Beccaria reached way back in 1764. Namely, that if the goal is deterring crime, the certainty of punishment is far more important than the severity.

A particular case in point is drunk driving laws. Numerous states have adopted felony sentences for three or more convictions for drunken driving. In terms of actually preventing drunk driving, however, it would probably be more effective to put more cops on the road on a regular basis.

Why would this help? As things stand now, most offenders drive drunk multiple times before they are finally pulled over and charged. But if there were a significantly higher chance of being caught, potential drunk driving offenders would be more inclined to avoid committing the offense altogether.

This, at least, is what Beccaria’s certainty principle would suggest. To be sure, it would cost considerable sums of money to put more DWI checkpoints in place and engage in other crime prevention efforts. But considering how expensive it is to incarcerate someone, Beccaria’s insight could reallocate resources toward a more efficient overall strategy for dealing with drunk driving.

It would also be more just. With more consistent enforcement of the law, arrests would seem more consistent, and therefore more fair.

Brubaker and Tough Love

noreply@blogger.com (Eric John Sponheim) — Sat, 01 Sep 2012 04:50:00 +0000

Robert Redford's portrayal of a crusading prison warden in the 1980 film “Brubaker” is far from his best known role. That is scarcely surprising. Even with a bona fide box office star on board, an often gritty (if increasingly melodramatic) prison movie is a tough sell to the public.

Still, the film remains noteworthy. It was based on the experiences of a real warden, Tom Murton, in the Arkansas prison system in the late 1960’s. Murton’s efforts led to federal litigation that helped validate the constitutional rights of inmates concerning the conditions of incarceration.

As depicted in the film those conditions were horrific, with beatings and bribery only the tip of the festering iceberg.

Is it possible that love could melt that iceberg and offer a new paradigm for criminal justice? Two authors from the American friends' community, Laura Magnani and Harmon L. Wray, explore that question in their 2006 book “Beyond Prisons.”

It's a book worth reading, even for those more comfortable with the word "tough" than the word "love."

.

Status Offenses

noreply@blogger.com (Eric John Sponheim) — Sat, 01 Sep 2012 03:37:00 +0000

In the age of Facebook, the word “status” has had a remarkable new lease on life. Two millennia removed from its Latin roots, the word pours forth over the Internet, a vessel into which millions pour their expressions of self.

There are, however, other specific uses for the word. In criminal justice vocabulary, “status offense” is a term of art for conduct that, though not criminal, carries consequences because the offender is a juvenile.

Examples of status offenses include:

• Underage drinking

• Skipping school (truancy),

• Running away from home

• Curfew violations

Behaviors such as these can bring juveniles under the supervision of the courts. If the problem is persistent enough, a judge may find that the juvenile is delinquent. This, in turn, can trigger placement in a custodial setting that has most, if not all, of the elements of incarceration.

A glance at the entry for “status crime” in the Fifth Edition of Black’s Law Dictionary (1979) points to a time when open-ended offenses were used against adults as well. A “status crime,” according to this edition of Black’s, is “[a] class of crime which consists not in proscribed action or inaction, but in the accused’s having a certain personal condition or being a person of a specified character.”

The example given in Black’s is vagrancy. I’m reminded also, though, of Otis the Drunk in reruns of the “Andy Griffith Show” that I saw in my youth.

Sheriff Andy Taylor and Deputy Barnie Fife did not have a systemic procedure in place for testing Otis’s blood-alcohol level. But that did not stop them from using their discretion to put him behind bars when they deemed it appropriate.

The Bitter Irony of Mass Incarceration

noreply@blogger.com (Eric John Sponheim) — Fri, 31 Aug 2012 03:43:00 +0000

"A riddle wrapped in a mystery inside an enigma."

Winston Churchill coined this phrase in 1939 to describe Russia. It became widely known during the Cold War.

Could it be applied to America's prison boom? For there is a mysterious element to how the U.S., in only one generation, become an international outlier on incarceration rates.

To be sure, there are many reasons for the unprecedented increase in inmates.Two years ago, a special issue of Daedalus on mass incarceration probed them in considerable depth.

The irrationality of America's entire epic jailing exercise, however, cannot be denied. To paraphrase Churchill, American mass incarceration is a riddle wrapped in a bitter irony. The nation that says it loves liberty so much takes so much of it away from its own citizens.

Length of Stay: No, Not in a Hospital

noreply@blogger.com (Eric John Sponheim) — Wed, 29 Aug 2012 02:59:00 +0000

The sheer size of America's incarcerated population isn't due only to sending more people to jail or prison. It is also due to keeping them there longer.

To be sure, there have been plenty of people sent. In the last twenty years, the number has shot past 2 million. It currently still stands at 2.3 - despite intense financial pressure on state budgets to reduce the bloated corrections tab.

The size of the prison population would come down significantly, though, if offenders did not stay so long. Length of stay is an important driver of the overall incarceration increase. Yet as legislators have continued to lengthen sentences and tack on enhancements, the cumulative effect has been inescapable.

As a result, length of stay is a well-established term in criminal justice discourse.

To search engines, however, the term still seems to connote length of stay in hospitals, not prisons. A simple Google search tonight for "length of stay" yielded a search results page consisting entirely of medical sources, such as this one from the Centers for Disease Control.

The Hum of the Hovercraft

noreply@blogger.com (Eric John Sponheim) — Wed, 25 Jul 2012 01:18:00 +0000

In yesterday's post, I mentioned the 24 / 7 video cameras in "The Hunger Games."

Tonight, I read this in the Sunday's Star Tribune:

"All of the pieces appear to be lining up for the eventual introduction of routine aerial surveillance in American life - a development that would probably change the character of public life in the United States."

The quotation is from the American Civil Liberties Union, in a paper on unmanned drones published last year. The tile was "Protecting Privacy From Aerial Surveillance."

In "The Hunger Games," it is unclear whether the hovercraft are manned. But they are always ominous.

Deterrence: The View From District 12

noreply@blogger.com (Eric John Sponheim) — Tue, 24 Jul 2012 01:54:00 +0000

Social control takes many forms.

In the U.S., mass incarceration plays that role for many segments of the population - particularly African-Americans.

Most of that incarceration, however, takes place off-screen. Many of us don't even think about the fact that our country has over 2 million people locked up in jail or prison. We just let the correctional officers and other criminal justice professionals serve as our proxies.

The nightmarish world depicted in "The Hunger Games" provides a thought-provoking contrast to our indifference. In Suzanne Collins's dystopia, a lethal form of incarceration plays out 24 / 7 on out-size video screens.

The ritual is almost like a return to the era of the public execution in its over-the-top striving for a deterrent effect. No use resisting The System when the power to compel such extreme behavior is on in-your-face display.

The prisoners are children who committed no crime, yet are put under intense pressure to be their own executioners.

Beltless at the Dakota County Courthouse

noreply@blogger.com (Eric John Sponheim) — Mon, 16 Jul 2012 02:45:00 +0000

“Trust, but verify,” Ronald Reagan supposedly told Mikhail Gorbachev upon signing a missile treaty in the waning days of the Cold War.

It’s a curious phrase. The more a party feels it necessary to verify, the more it would seem to undermine trust. After all, if there really is trust, there is no need to verify.

That’s why people in close-knit communities leave their doors open and their cars unlocked. They don’t feel compelled to review surveillance tape upon returning home to verify that their trust was well founded.

What happens, however, when the size of a community grows sufficiently large that the instinctive trust of a smaller community is no longer present?

Well, then you would have — to take one example — the Dakota County courthouse in Hastings. As the Star Tribune reported last December, the country board insists that attorneys remove their belts and go throw security every time they visit the courthouse.

Members of the bar pressed the board for an exemption from the belts-off rule late last year. In other metro counties, they pointed out, attorneys are regularly allowed to bypass airport-type security procedures.

In addition, as attorney Paul Rogosheske contended, attorneys are already screened for character and moral fitness by the bar admission process.

The Dakota County Board was completely unmoved by these arguments. Instead, the board reaffirmed its support for continuing to require attorneys to go through the same security screening as everyone else.

During the board hearing, a commander from the sheriff’s office, John Grant, displayed a shiv (a piece of sharpened plastic). “This will kill you, just like anything else,” he said ominously.

Similarly, one of the county commissioners, Liz Workman, flatly told the lawyers that the courthouse was like the airport. So they should get used to removing their belts and going through the whole-nine-yards security procedure.

There is an obvious problem, however, with the airport analogy. Airlines offer expedited check-in programs for their frequent flyers. It’s a pity that Dakota County can’t do the same for its frequent courthouse-flyers, namely attorneys.

It’s a pity not because it’s such an inconvenience to remove your belt. It’s a pity because using more verification than is really needed tends to undercut trust.

Pistol Packing in L' Etoile du Nord

noreply@blogger.com (Eric John Sponheim) — Tue, 10 Jul 2012 04:17:00 +0000

Headline writing is a peculiar craft that will outlive newspapers. To capture a would-be reader's interest, in a few short words, is an important skill. Especially in an age of information overload.

Sometimes, however, the headline writers get a little too cute. Even worse, sometimes they obscure the facts.

For example, yesterday's Star Tribune featured a long front-page article on legalized gun carrying in Minnesota. Presumably trying to riff on the state's "Land of 10,000 Lakes" slogan, the article multiplied the state's number of lakes by ten to get the number of permit holders.

The result was a headline that read Land of 100,000 Gun Toters.

Ah, but reality is not always so nicely symmetrical. It is Wisconsin, our neighbor to the east, that has about 100,000 gun permit holders. Here in Minnesota, with more restrictive gun permit requirements than Wisconsin, the number is more like 51,000. (The Strib said it was 50,777 as of 2007, which is now five years ago.)

A pity, to have such a fine article undermined by a factually inaccurate title. Unless the Strib was trying to imply that the trend line is heading toward 100,000 gun carriers in Minnesota?

Sandusky's Mens Rea

noreply@blogger.com (Eric John Sponheim) — Sun, 01 Jul 2012 01:28:00 +0000

With certain conduct, the same action may be criminal or not, depending on the intent of the person who performed it. This is basic criminal law, and in the first year of law school, students historically have learned a Latin term for criminal intent: mens rea.

The Jerry Sandusky juvenile sex abuse case is a recent reminder of this basic principle. Some of the charges were for clearly prohibited acts, such as oral or anal sex with a minor. Other charges, however, were for conduct involving overt but somewhat ambiguous acts, such as touching in the shower.

Before the jury began its deliberations, the judge gave clear instructions about what constituted a criminal mental state.

“It is not necessarily a crime for a man to take a shower with a boy, wash a boy’s hair, lather his shoulders, or engage in back rubbing or back cracking,” the judge said. “What makes this kind of ambiguous contact a crime is the intent with which it is done. You must determine it is an act of lust.”

And that, indeed, is what the jury found. On virtually all of the charges involving “ambiguous conduct,” the jury found Sandusky guilty of actions motivated by lust.

Amazed by the Numbers

noreply@blogger.com (Eric John Sponheim) — Sat, 30 Jun 2012 06:46:00 +0000

Round numbers are supposed to be easier to get your mind around. But it’s hard to do that, when the round number is one American in every 100 behind bars.

The American prison system currently holds about 1.6 million people. Jails confine another 735,000 more, according to latest data from the Bureau of Justice Statistics.

The jail figure is down slightly in the last few years. But when the number of prison inmates is added in, the total number of people confined in correctional facilities approaches 2.4 million.

It’s not so much a system as a set of systems, consisting of 50 states, the District of Columbia, the feds, and various local governments — particularly jails at the county level.

With so many decision makers, it’s hardly a vast conspiracy. The cumulative effect, however, is Leviathan-like in size. Scholars now call it mass incarceration.

This Leviathan is a labyrinth for many who are inside it. With prison terms so long and rehabilitation resources so scarce, it must seem like being stuck in a maze, trying to get out.

Indeed, mass incarceration has also become a labyrinth in policy terms. But no Theseus is in sight, to slay, or at least tame, the beast our society has created out of fear and malign neglect.

The closest we’ve come is Sen. Jim Webb, whose sensible proposal in 2009 for a national commission to review sentencing policy and practice went nowhere fast.

Instead of a single national hero, how about a host of heroes at the state and local level? In the dark maze, they could be a thousand points of light.