Piercing the Panopticon

Everybody Loves a Winner, Indeed

noreply@blogger.com (Eric John Sponheim) — Wed, 08 Feb 2012 05:27:00 +0000

“Everybody loves a winner,” sang Linda Ronstadt on her 1973 album Don’t Cry Now.“ But when you lose,” she added, “you lose alone.”

One might add: especially in America.

A current case in point came Sunday night, during the Super Bowl post-game ceremony. After the game ended, and we all came back from commercial break, the public address announcer at Lucas Oil Field in Indianapolis introduced NFL Commissioner Roger Goodell.

As a long-time sports fan, I’ve watched such ceremonies many times before. What I expected was for the commish to begin by commending the losing Patriots on their effort. Only then, with the agony of defeat acknowledged and softened, would the winners be congratulated and praised.

Not so, in this case. Goodelll didn’t even mention the Patriots. He started by thanking the league’s fans for their support. This was understandable and appropriate — especially considering that the NFL season began belatedly because the owners had locked out the players in a labor dispute.

From expression of gratitude to the fans, however, Goodell didn’t make the obvious next move. That would have been to recognize the second-place Patriots for a remarkable season that ended one play short of the championship.

Goodell didn’t do that. He ignored the Pats completely and moved immediately to laud the winning Giants for their victory.

What a perverse culture we have to permit such behavior.

And, by extension, what a challenge ex-offenders have, trying to reenter society after being labeled as “losers” because they went to prison.

Prisoner Visitation and Recidivism Reduction

noreply@blogger.com (Eric John Sponheim) — Wed, 01 Feb 2012 03:33:00 +0000

Tonight I participated in the winter conference call of the Prison Congregations of America board of directors. We have financial challenges, as many nonprofit organizations after the Great Recession. But the ministry we support — supporting the creation of worshipping communities of faith within prison walls — is growing.

PCA began in 1984, after a white Lutheran pastor named Ed Nesselhuf was called to serve as chaplain in a women’s prison in Maryland where most of the inmates were black. The Lord, they say, works in mysterious ways.

And so the Lord did. By the work of the Spirit, PCA has grown today to include congregations in 11 states, with a twelfth congregation under development in Montana.

One of my fellow board members is Rich Rienstra, who started a prison congregation in Michigan. He shared with the board news of a new report about the value of visiting prisoners. The report showed showed that visiting people in prison can help reduce reoffense rates after their release.

Rienstra cited Pat Nolan of Prison Fellowship Justice Fellowship as his source for this information. When I googled it, however, I found that the recidivism report was actually done by the Minnesota Department of Corrections. It was released in November 2011.

The title of the study is studiedly objective in tone: “The Effects of Prisoner Visitation on Offender Recidivism.” For Christians, though, the subtext is clearly Matthew 25, where Jesus urges us to visit those imprison and promises to be found there.

Jail Time for Libel? Not in English Language Version of 'The Girl With The Dragon Tattoo'

noreply@blogger.com (Eric John Sponheim) — Mon, 30 Jan 2012 05:28:00 +0000

Translating a popular novel from one culture into a film aimed at another is certainly fraught with challenges. It’s essentially an act of double translation: from one culture to another and also from one artistic genre to another.

A host of artistic choices have to be made. Whatever the end result, it isn’t merely a matter of transposing the content from Form A to Form B.

Yet how odd it initially seems that an American film version of a European crime thriller omits a jail term served by one of the key characters. That is what writer / director David Fincher chose to do, however, in his Anglo Saxon take on the sensational Swedish novel The Girl With the Dragon Tattoo.

In the Stieg Larsson original, muckraking journalist Mikael Blomkvist must serve a couple of months in jail as part of his sentence after being convicted of libeling a notorious business tycoon. In Fincher’s film, the sentence consists only of fines, with no jail time or even probation.

One might have thought that including the jail term would be quite natural in a film aimed at American audiences. After all, we are the country that leads the world in incarceration rates, the country sometimes called A Nation of Jailers.

Fincher probably felt that the very liberality of the conditions of Blomkvist’s confinement would make it unintelligible to many Americans. For example, Blomkvist gets to choose when he will serve his jail term. Such discretion is little known in our system, geared as it is toward punishment.

Similarly, the jail term itself, when Larsson’s Blomkvist does serve it, turns out to be a positive experience for him - more like going to a summer camp than to a hellhole. This contrasts sharply with the American perception that a jail term must inevitably evoke constant fear and trembling.

A Meta Question For Criminal Justice Research

noreply@blogger.com (Eric John Sponheim) — Thu, 12 Jan 2012 05:20:00 +0000

America spends massive amounts of money on criminal justice — especially on prisons.

It’s big business in a country that incarcerates over two million people and keeps millions more on probation or parole. Nationally, the annual cost to incarceate so many people approaches $70 billion, according to estimates by the Economics of Crime working group at the Bureau of Economic Research.

Of course, America does tend to do things in a big way. I was reminded of this tonight, when listening to Fresh Air. The guest was author Matthew Aid, who said that the number of intelligence analysts working for Uncle Sam has ballooned to 210,000 in the wake of 9/11.

This led me to wonder: If America can afford 210,000 intelligence analysts, what about criminal justice analysts? Is the amount of research that is done to help guide decisions in our sprawling justice system even remotely proportionate to the system’s expense?

The healthcare system has the Centers for Disease Control, the National Institutes of Health, and other institutions devoted to research. Their funding is quite ample and their role in developing guidelines for hte delivery of care is significant.

What about criminal justice? It’s true that the National Institute of Justice, an arm of the U.S. Department of the Justice, supports research and issues grants for demonstration projects. There are also various research agencies at the state and sometimes even the local level.

But does our society really invest in enough research to develop an adequate level of knowledge about how the criminal justice system is performing?

Charlie Rose and Criminal Justice: The Dog That Did Not Bark

noreply@blogger.com (Eric John Sponheim) — Tue, 10 Jan 2012 02:32:00 +0000

Charlie Rose's talk show on PBS is a quite remarkable, if highly selective, record of our times. Visiting foreign ministers, actors touting a current movie, and an array of authors make the visit to Rose's studio in New York.

One subject Rose scarcely touches, however, is criminal justice. In the decade that I've been watching the show off and on, I've never seen one devoted to any aspect of the justice system.

This very absence says something about the lack of public dialog of policing, sentencing, and corrections in our public culture. It reminds me of the Sherlock Holmes story where Holmes drew telling inferences from a dog that did not bark.

The dearth of discussion about justice policy on Charlie Rose is like Holmes's dog that did not bark. What is the silence saying?

Earth Stood Hard as Iron

noreply@blogger.com (Eric John Sponheim) — Sun, 01 Jan 2012 03:52:00 +0000

Tonight my friend Lynne sang In the Bleak Midwinter at 5 o'clock worship. It was very affecting; a beautiful song, beautifully sung.

In the bleak midwinter,
Frosty wind made moan,
Earth stood hard as iron,
Water like a stone.

Christina Rosetti was not writing about prison on a literal level. She was writing about the moment before the Incarnation, before a people in darkness saw a great light.

Figuratively, however, Rosetti's imagery evokes the winter of the heart that prison must be. The isolation and hopeless desperation experienced by many inmates are hard for those of us on the outside to understand. But we should not doubt the depth of the despair within the walls.

Prison ministry seeks to respond to this terrible void, in a place where all seems hard as iron. That is why I serve as a board member of Prison Congregations of America, which works to organize church communities within prisons.

In such a community, centered on Christ, the spirit flows. Water is no longer like a stone, but rather a cup of kindness to each storm-tossed soul.

Paradigm Shift Shall Surely Come

noreply@blogger.com (Eric John Sponheim) — Sat, 17 Dec 2011 04:51:00 +0000

This blog turned three yesterday.

Depending on how one measures, that is arguably a fairly long time. Senator Jim Webb’s proposal for a national sentencing reform commission, for example, has come and gone.

By broader measures of duration, however, three years is not that long at all. The dominant paradigm of mass incarceration remains very much in place in American criminal justice.

Yes, there are some reform experiments underway in cash-strapped states that can longer afford to lock so many people up for so long. But the fundamental focus on prison and punishment remains very much in place as 2011 draws to a close, just as it did in 2008 when I put up my first post.

Paradigm shift shall surely come to American corrections. It just won’t come on cue, merely because one year gives way to another.

Glen Loury on Factories For Producing Inmates

noreply@blogger.com (Eric John Sponheim) — Tue, 13 Dec 2011 06:05:00 +0000

Glen Loury’commentary on America’s correctional Leviathan came to my attention in 2009. Though I knew he taught at Brown, I didn’t realize until I watched this video that his primary discipline is economics

The economic perspective is a valuable one in approaching questions of incarceration, class, and race.

How is it, for example that most of the people who go to prison for involvement with drugs are poor and non-white? And how is it that America, with five percent of the world's population, has 25 percent of the world’s prison population?

Loury describes the American criminal justice system as “an engine for producing and reproducing racial inequality. “ In certain neighborhoods, he argues, jails and prisons are essentially “factories for producing inmates.”

The factory works by constantly exposing new generations to a culture of entrenched interaction with the prison system. Young men in these poor, crime-ridden neighborhoods tend to have few positive role models in their lives — in large part because widespread incarceration has taken such a toll on their social networks.

Young men in this setting often become enmeshed with the law themselves and get sent to prison. The percentage of such men who are from racial minorities is far disporportionate to those groups' percentage of the U.S. population as a whole.

Upon returning to the neighborhood after serving a prison term, these men (and a few women) face daunting challenges in finding proper employment. The Great Recession and its high-unemployment aftermath have only added to these challenges.

Yet the Recession has also spurred efforts in some states to reform a prison system that has become too costly to sustain. To use economic parlance, what’s needed is a change in the business model for the whole system.

Setting Free the Captives, Literal and Figurative

noreply@blogger.com (Eric John Sponheim) — Tue, 06 Dec 2011 05:18:00 +0000

Advent imagery is very strong on release of prisoners.

One example is in a hymn called Hark the Glad Sound, which we sang at worship in the sanctuary at Shepherd of the Valley in Apple Valley, Minn., over the weekend.

He comes the prisoners to release
In Satan’s bondage held
The gates of brass before him burst
The iron fetters yield.

Such imagery is scarcely surprising, when one considers the source. It comes right out of the prophet Isaiah, who sought to offer a prophetic word of encouragement to Israelites exiled in Babylon.

But in what sense are people today prisoners in need of release? The anwer turns, of course, on how one understands the reality of sin.

During the Reformation, Luther and Erasmus had a lively debate about what sin does to the concept of free will. Luther argued that sin throws the will into bondage. Erasmus thought that view was too extreme and discounts the degree to which, despite sin, humans are still made in God's image.

Reflecting on the concept of captivity from the comfort of a comfortable suburban home is a rather odd experience. Though I live far from any literal prison, I see four possibilities:

• Literally in prison, but spiritually free

• Literally in prison, and also spiritually in bondage

• Literally free (not in prison), but spiritually in bondage

• Literally and figuratively free

Given these logical possibilities, it makes sense that St. Paul was such a formative explicator of the concept of spiritual freedom. For Paul, after all, spend considerable time in a literal prison cell.

The Subjective Factor in Time Measurement

noreply@blogger.com (Eric John Sponheim) — Tue, 29 Nov 2011 04:31:00 +0000

Doing time.

That’s one way to refer to serving a jail or prison sentence. For sentences to a term of incarceration, even indeterminate ones, are measured in numbers of months or years.

In an indeterminate sentencing system, the assigned number of years is typically a range. For example, on a certain offense the range could be from one year up to as many as five. It’s up to the parole board whether to let someone out before the maximum term is up.

In a determinate or structured sentencing system, what you see is generally what you get. If someone is sentenced to a five-year term, that’s what they are supposed to serve.

In some states, this is slightly qualified by assigning a certain percentage of the sentence to be served in the community on supervised release. In Minnesota, this percentage is one-third. Other structured sentencing states use different percentages.

These raw numbers, however, are merely the quantifiable, objective side of sentencing. There’s also the subjective experience, for the person sentenced, of what it feels like to serve the time.

I know, I know: “If you can’t do the time / don’t do the crime.” That simplistic mantra from the 80s has been used to try to justify a lot of heavy-handed sentencing over the years. It should really be the subject of a future post.

The point I want to make here is that, perhaps inevitably, the subjective experience of serving time — how long or short a sentence seems — will vary from inmate to inmate.

I was reminded of this while rereading a John D. MacDonald detective novel from the 70s called The Scarlet Ruse. MacDonald’s hero, Travis McGee, is trying to fend off a likely assault by a mob figure that could come at any time.

Awaiting the attack, McGee consults his watch: “Every ten minutes I looked at my watch and found that one more minute had gone by.”

In other words, in certain circumstances, the subjective experience of time can stretch out to be much longer than what the objective measure might imply.

Is that what it is often like for inmates doing time in jail or prison?

Everyone Loves a Krimi

noreply@blogger.com (Eric John Sponheim) — Sun, 27 Nov 2011 03:19:00 +0000

Everyone Loves a Krimi.

Well, at least many people do. Krimi is German for crime genre. And the appeal of this type of “literature” or television is virtually universal.

In the 70s, in the U.S., it was Kojak and Columbo and McCloud. Today, and for the better part of the last decade, it’s CSI.

The bottom line is crime sells. Or perhaps we should say the investigation and prosecution of it sells. Either way, it sells.

There’s no use bemoaning this fact. To do that would be to miss important clues to the baser but nonetheless vital elements of the human personality in cultures that allow crime fiction to flourish.

James Hillman wrote about the importance of attending to basic (and seemingly base) intincts in The Soul’s Code. Before that, Hillman's intellectual preceptor, Carl Jung, wrote about it in Christ: A Symbol of the Self.

An integrated, wholly developed self isn’t only about the high road. It’s about the low road as well.

An Eye For Eye Doubles the Blindness

noreply@blogger.com (Eric John Sponheim) — Tue, 22 Nov 2011 05:41:00 +0000

Vitality and directness.

Pastor-turned-seminary professor Eugene Peterson felt his students were frequently missing these qualities when they encountered the New Testament through the prism of traditional English translations. So easy to hear and read familiar words, but not really understand.

So Peterson translated the original Greek into a radically contemporary English version and published it as The Message in 2002. Through Lutheran circles, my mom and spouse became aware of the book, and I learned of it from them.

Consider a sample:

Here’s another old saying that deserves a second look. “Eye for eye, tooth for tooth.” Is that going to get us anywhere? Here’s what I propose: “Don’t hit back at all.” If someone strikes you, stand there and take it. If someone drags you into court and sues for the shirt off your back, gift wrap your best coat and make a present of it. And if someone takes unfair advantage of you use the occasion to practice the servant life. No more tit-for-tat stuff. Live generously.

This rendition of Matthew 5 provides a point of departure for a new potential paradigm in American criminal justice.

As I’ve argued repeatedly in this blog, we’ve been stuck for too long in the prison paradigm. This has come at great cost in broken lives and emptied treasuries, with little if any good to show in improved public safety from mass incarceration.

Indeed, one can plausibly argue that excessive reliance on prison as a response to social conflict actually reduces public safety. After all, almost all offenders get released eventually. And prison tends to make them more, not less, likely to reoffend when that happens.

In other words, tit-for-tat doesn’t work, if the justice system has goals that go beyond simple retribution. Could we try, as individuals and as a society, to summon the generous spirit that Peterson’s paraphrase of Christ counsels?

Byzantium's Epic Survival and the Balance Between Force and Persuasion

noreply@blogger.com (Eric John Sponheim) — Sat, 12 Nov 2011 05:52:00 +0000

At the public library last night, I happened upon a book called The Grand Strategy of the Byzantine Empire. The title immediately reminded me of taped lectures by Edward N. Luttwak that I heard in 1982, when I was a senior at St. Olaf College.

It was still very much a Cold War world back then. The Soviet Union had invaded Afghanistan only three years before. The Berlin Wall seemed as impassable as ever. Gorbachev was a rising Soviet official, but glasnost (openness) was at best a glimmer on a far-off frozen horizon.

In the spring of 1982, my Russian history professor at St. Olaf, Robert Nichols, lent my roommate and me a tape containing lectures by Luttwak on “The Grand Strategy of the Soviet Union.” This topic became the subject of his book by that name the following year.

A generation in later, in 2009, Luttwak published his long-planned follow-up book on the Byzantine Empire. In it, he explores the divergent fates of the two halves of the old Roman Empire. How was it, he asks, that the militarily stronger western half succumbed so soon to encroaching tribes, while the far more vulnerable eastern half survived for over 800 years?

His answer is thought provoking. The eastern empire adapted and persisted while Rome was overrun because Byzantium devised a strategy that used:”a minimum of force and a maximum of persuasion.” Rome, by contrast, relied on what the George W. Bush administration, on the eve of the Iraq War, called “shock and awe.”

Shock and awe, however, was little more than a propaganda phrase for excessive reliance on force. And it led to a devastating cascade of calamities in Iraq for Iraqis and Americans alike.

One of those calamities, of course, was the prisoner abuse scandal at Abu Ghraib. In an upcoming post, I’d like to examine what happens when the relationship between force and persuasion gets out of balance in the criminal law.

Dominique Strauss-Kahn's Reversals of Fortune

noreply@blogger.com (Eric John Sponheim) — Wed, 02 Nov 2011 04:46:00 +0000

Reversal of Fortune was title of a book and movie about a trial for attempted murder that yielded a surprising outcome. Claus von Bulow, an Austrian aristocrat-turned socialite husband, was eventually acquitted of charges that he tried to kill his wife Sunny by injecting her with an overdose of insulin. High-profile Harvard Law professor Alan Dershowitz defended van Bulow and wrote a book about it.

A film version appeared a few years later. Jeremy Irons played Claus van Bulow and Glenn Close was cast as Sunny. Ron Silver was in the role of Dershowitz. I saw the film at the Parkway Theater in Minneapolis on a very cold December night in 1990.

It is unclear whether there will be a film version of the Dominque Strauss-Kahn story. But the events that have unfolded since May of this year contain multiple reversals of fortune.

In May, New York police arrested Strauss-Kahn, the powerful chairman of the International Monetary and likely French presidential candidate, on charges that he sexually assaulted a hotel chambermaid. After being pulled off of an Air France jet and jailed, Strauss-Kahn was paraded past the press — as any other defendant in America could be.

Many French people reacted with anti-American suspicion and considerable disgust at this treatment. After all, Mr. Strauss-Kahn may have been accused of rape, but he had not yet been proven guilty.

Within a little over three months, prosecutors in New York had dropped the charges entirely. They had completely lost confidence in the truthfulness of the testimony of the maid who leveled the charges against Strauss-Kahn. This was certainly a reversal of fortune for the prosecutors, who were left with the proverbial egg on their faces.

Mr. Strauss-Kahn returned to France, but did not step right back into his former, power-broker life. For one thing, he still faces a civil suit brought by the maid, Nafissatou Diallo, who has made her name public.

Diallo's civil case is scarcely Mr. Strauss-Kahn’s only concern. There is also, well, the state of his soul. Could this have been on Strauss-Kahn’s mind when confessed in a television interview to “moral failing” in his hotel room encounter with Ms. Diallo?

Yet even as Strauss-Kahn seeks to reassert his moral self, the swirl of moral degradation increasingly seems to surround him. Various press reports have tried to link him to the operation of an alleged prostitution ring in the city of Lille. This alone may be lurid enough to attract movie interests, and indeed the Internet contains unbounded speculation about a possible porn film based upon these events.

For Dominque Strauss-Kahn, then, there have been numerous reversals of fortune in the last six months. And there are probably many more to come.

Tocqueville's "Pretext" and the Spectre of Warehousing

noreply@blogger.com (Eric John Sponheim) — Mon, 31 Oct 2011 03:23:00 +0000

Alexis de Tocqueville’s Democracy in America is a highly celebrated book in certain academic circles. Introducing a handsome hardcover edition for the University of Chicago Press in 2000, Harvey C. Mansfield and Delba Winthrop went so far as to assert that it is “the best book ever written on democracy and the best book ever written on America.”

This post is not the right forum to assess that remarkable double claim. For now, I seek only to note the book’s historical connection to Tocqueville’s interest in prison reform.

In 1831, Alexis de Tocqueville and another young Frenchman, Gustave de Beaumont, traveled though America for about nine months. The two friends had procured an assignment from the French government to report on prison reform.

Tocqueville’s larger interest was a grand project to understand and interpret the dynamics of democracy and social equality in the United States. The applicability of this study to hierarchical European societies was of urgent concern in the wake of the French Revolution.

In a letter written in 1835, Tocqueville referred to the study of American penal reform as a “pretext” for the trip. But in January 1831, he and Beaumont did publish the study they promised. The English title is On the Penitentiary System in the United States and Its Application to France.

What was the nature of the reform that Tocqueville and his friend sought to study? It involved the goal of reforming people in penitentiaries, rather than merely punishing them in prisons.

Today, the prospect of penance in prison is a private matter. But to the reform movement Tocqueville and Beaumont came to study, penance was seen as central to the very purpose of prison. There are still vestiges of this in our retention of the word “correctional” in the phrase “correctional facility.”

After all, “correction” is a secular echo of the religious penance that reformers once promoted. Spiritual transformation is still possible in prison in 2011. But it is not the state’s concern. Indeed, even the notion of rehabilitation is not much favored anymore.

And that raises a spectre that haunts our entire correctional system. The spectre of warehousing.

U.S. Supreme Court Clarifies the Purpose of Prison

noreply@blogger.com (Eric John Sponheim) — Sat, 29 Oct 2011 04:44:00 +0000

A federal judge gives a man a 51-month sentence for smuggling illegal aliens into the United States. The judge makes the sentence that long so that the man will qualify for a residential drug treatment program.

This is not permissible, the U.S. Supreme Court decided last June in Tapia v. United States. Writing for the Court, Justice Elena Kagan pointed to the text of the sentencing guidelines legislation passed by Congress in 1984.

The legislation specifically directs courts to “recognize[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” (18 U.S.C. 3582(a))

I have not really digested this opinion yet. But I will ask one question. Is it any wonder, with this view of imprisonment, that the recidivism rate for released inmates is so high?

To be sure, the large majority of prisoners are in state systems, not the federal system. Less than fifteen percent of prisoners are in the federal system. Indeed, two state systems - Texas and California - each rival the entire federal system in size.

In addition, in the state systems themselves, many states have rejected the structured sentencing guidelines system that prevails in the federal system. This was due, in part, precisely because of the perceived rigidity of the federal guidelines.

Nonetheless, U.S. Supreme Court decisions are always important, not only for the law they establish but for the tone they set. In Tapia, the Court's decision speaks volumes about America's preference for punishment over rehabilitation in establishing sentencing goals.

Mass Incarceration as a Contagious Disease

noreply@blogger.com (Eric John Sponheim) — Wed, 26 Oct 2011 00:23:00 +0000

Apocalyptic imagery, to my mind, is entirely appropriate as a way to describe the state of our criminal justice system. I’ve use my share of it, over the years, in this blog.

A bloated Leviathan.

A colossal uncharted labyrinth.

Pick an over-the-top image, and it can be made to apply to a system in which seven million citizens sit in jail or prison — a number vastly disproportionate to anywhere else in the developed world.

So I was scarcely surprised by the titles of the two books recently reviewed by Michelle Alexander in the Washington Post. A plague of prisons arguably does point to some sort of collapse of the American criminal justice system. In pulblic health terms, mass incarceratoin is indeed like a contagious disease.

As a character in Camus' The Plague observes, "We've all got the plague." We all have it because we all live in this society that created it and continues to perpetuate it.

Budget constraints, and perhaps sheer exhaustion, are finally starting to partially contain the contagion. What will take its place, when the paradigm shifts?

Is the Just Person Always Happy?

noreply@blogger.com (Eric John Sponheim) — Sat, 15 Oct 2011 05:29:00 +0000

“The just man is always happy,” Plato asserts in The Republic.

Really?

It depends, I suppose, on what is meant by “happy.”

What if the just man were wrongfully convicted?

Today, in America, stoic acceptance isn’t the only possible response. The Innocence Project works zealously to marshal definitive DNA evidence to clarify problematic convictions — which sometimes leads to exoneration.

Somewhere on an Emotional Desert Highway

noreply@blogger.com (Eric John Sponheim) — Thu, 29 Sep 2011 04:02:00 +0000

Kym was frequently high on Percocet at age 16. Her mother knew this, but still left Kym in charge of her four year-old brother Ethan.

Driving home from a park, Kym lost control of the car and it plunged off a bridge and into a lake. She was not able to get Ethan out of his car seat in time, and he drowned.

Years later, Kym is still struggling with addiction. And with God too, like Job before her.

And then there is the utterly broken relationship with her mother. On the eve of her sister’s wedding, Kym finally confronts her with the loaded questions: “Why did you leave me in charge of him? What were you thinking?”

Rachel Getting Married raises many deep issues. To his credit, director Jonathan Demme has the good sense to leave many of them unresolved. The film is fiction, not a documentary. But it points to the raw emotion involved in human conflict, regardless of whether that conflict is addressed by the criminal law.

The fragmented family Demme depicts could have used a restorative healing circle. That was not to be, though the groom's touching rendition of a Neil Young song at Kym's sister's wedding provides a measure of musical therapy.

Sensitive About Sentencing Reform

noreply@blogger.com (Eric John Sponheim) — Tue, 27 Sep 2011 04:36:00 +0000

“Maybe I’m too sensitive or else I’m getting soft,” Bob Dylan worried in a 1970s song lyric.

Tonight, I turned this line on myself when I reread an essay that seemed to imply that to call for radical reductions in America’s bloated prison system is to engage in naïve, short-sighted thinking.

In their essay in a special issue of Daedalus on mass incarceration, Robert Weisberg and Joan Petersilia warn of the “dangers of Pyrrhic victories” against it. They acknowledge that America’s incarceration levels make today’s prison system an outrageous outlier both historically and internationally. But they caution that trying to bring down the preposterously high number too fast too soon might be counterproductive.

Weisberg and Petersilia are concerned that reductions in the prison population must be accompanied by a sustained commitment to addressing the causes of recidivism. In practical terms, that means more probation officers, more drug treatment counselors, and so on.

Without these resources, Weisberg and Petersilia fear, a boomlet in new crime by released inmates could occur. And that, in turn, could prompt a visceral policy backlash. Lock ‘em up and throw away the key revividus.

I’m sensitive about this because I interpreted Weisberg and Petersilia to be saying that idealistic citizen-bloggers like me tend to be too naïve. We can let our passion blur our vision and fail to see the full strategic picture involved in systematic sentencing reform.

Am I being too sensitive in suspecting that the two veteran corrections scholars would dismiss this blog as superficial and sentimental? Maybe.

I take heart, however, from the point Glenn Loury makes in his concluding essay in the Daedalus special issue. Loury points out that leaving the decisions about corrections policy to self-appointed experts has had devastating effects on local communities and civic engagement.

To be sure, experts have important roles to play in reshaping sentencing and corrections policy. But if this country is a democracy, so do citizens.

Madness and Civilization II

noreply@blogger.com (Eric John Sponheim) — Sat, 17 Sep 2011 03:44:00 +0000

In One Flew Over the Cuckoo’s Nest, inmates of a mental institution struggle for their dignity against controlling Authority. It was an iconic film of the 70s, with Jack Nicholson in one of his indelible roles.

A generation later, “cuckoo’s nests” are harder and harder to find. Wave of wave of closings of state mental hospitals have left more and more mentally ill people on the streets. Not surprisingly, many of them end up in prison — upwards of 350,000, NPR recently reported.

This is a calamity for all concerned: the mentally themselves, other inmates who encounter them, the staff who try to work with them, and on and on.

If Michel Foucault were still with us, he might be writing Madness and Civilization II.

Doing the Wall Street Shuffle All the Way to Prison

noreply@blogger.com (Eric John Sponheim) — Sun, 04 Sep 2011 06:06:00 +0000

James B. Stewart’s fact-filled essay on the ImClone insider trading case presents a disquieting portrait of Wall Street as a forum for greed, betrayal, and the denial of truth.

The case unfolds in late December 2001 and into 2002, just a few months after the terrorist attacks of September 11, 2001. ImClone was only of many financial scandals playing out around this time. Others, such as Enron, the huge energy giant brought down by its own fraud, were far larger in scope.

None of those other scandals, however, involved a celebrity as well known as domestic diva Martha Stewart. The media’s feeding frenzy as the net of incriminating evidence began to close around Stewart was not a pretty sight. David Letterman, for example, joked on late-night TV about Martha handling her subpoena with an oven mitt.

But of course the ImClone case was no joke. And Martha Stewart was not even the central figure in it. That would be Sam Waksal, who had founded ImClone, a biotech company, with his brother Harlan in 1994,

Sam Waksal had trained in immunology and amassed a personal fortune. Yet he had also been forced out of a position at Tufts University for fabricating lab results and fired by New York’s Mount Sinai Hospital for similar reasons.

Though ImClone raised millions of dollars from investors, by 2001 it really had only one promising product: a drug called Erbitux that appeared to offer a treatment for colorectal cancer. The drug’s prospects seemed so encouraging that Bristol-Myers Squibb had offered an astounding $2 billion for a 40 percent stake in ImClone.

That deal was premised, however, on the Food and Drug Administration giving approval for Erbitux to be sold. When word got to Sam Waksal that the drug would not be approved, he and other family members immediately tried to dump their shares before the stock price tanked.

Though Martha Stewart was not a family member, she knew Waksal socially and they shared the same stockbroker, Peter Bacanovic, who had once worked for ImClone.

Bacanovic was eager to make his career at Merrill Lynch by ingratiating himself with Stewart, the superstar client. He was eager even up to the point of encouraging and facilitating insider trading. As ImClone stock faltered, however, he ended up incriminating her — and also his naïve assistant, Douglas Faneuil.

James B. Stewart’s account of the case doesn't only examine individual ethical choices, though. As his title, Tangled Webs, suggests, he’s also interested in the social systems that support or challenge individual decisions to lie. As the financial meltdown of 2008 showed, those systems had more severe underlying problems than most people would ever have imagined.

And we are still dealing with the fallout from them.

PSI Reports in Dakota County

noreply@blogger.com (Eric John Sponheim) — Wed, 31 Aug 2011 04:15:00 +0000

On July 12, I attended a continuing legal education seminar on probation and pre-sentence investigations. The session was presented by two supervisors at Dakota County Community Corrections, Heidi Siebenaler and Phyllis Grubb.

I was especially interested in this particular CLE for two reasons.

For one thing, I worked in state government as a criminal justice planner for six years, from 1997 to 2003. In the early 2000s, I worked in the Minnesota Department of Corrections under then-Deputy Commissioner Mark Carey, who previously directed Dakota County Community Corrections.

The other reason I was so interested was that, in law school in the mid-1980s, I’d written my student law review note on pre-sentence reports. More precisely, my topic was the discoverability of federal pre-sentence reports under the Freedom of Information Act. Though I chose not to publish the piece, writing it earned me the job of articles editor on the Valparaiso University Law Review for my third year of law school.

Interestingly, one of the specific issues regarding pre-sentence investigation (PSI) reports that the two presenters raised was confidentiality. According to Siebenaler, some Minnesota counties bifurcate the PSI into confidential and non-confidential parts. In Dakota County, however, the entire report is considered confidential.

At first glance, it may seem odd, or even Kafkaesque, not to provide the offender with a copy of his own report. That is the rule, though, in Dakota County. The defense attorney is allowed to see it, but not the offender..

On further analysis, however, the rationale for the rule becomes clearer. In domestic abuse cases, for example, information that other parties have communicated to investigators about the offender can be very sensitive. In fact, Siebenaler said, this can even be a concern when information is communicated to the offender indirectly through the defense attorney.

Lipstick on a Prison Pig

noreply@blogger.com (Eric John Sponheim) — Fri, 26 Aug 2011 04:14:00 +0000

California’s long-standing corrections crisis continues to unfold. The state has been under federal court order to address severe overcrowding that so severely impacted access to healthcare that the court found it constituted cruel and unusual punishment.

Though the case has been playing out for years, the situation remains tense. Recently, over 6,000 inmates went on a hunger strike to protest the conditions of incarceration. They claimed that many inmates are subjected to sensory deprivation in soundproofed cells without windows for 22 ½ hours a day.

The hunger strike went on for three weeks and involved 13 of the 33 prisons in the California system, according to press accounts.

Prison officials sought to rebut the allegations of inhumane treatment by holding an open house at the Pelican Bay State Prison. Legislatures and journalists were invited in to look around and, as it were, smell the (lack of) roses.

Prison spokesperson Oscar Hidalgo did not exactly give a ringing endorsement of the prison conditions. He called them “far from what we think is tortuous.”

Assemblyman Tom Ammiano, of the General Assembly’s Public Safety Committee, had a different take. Borrowing a line from the 2008 presidential campaign, he said the Pelican Bay officials’ attempts to dress things up were like “lipstick on a pig.”

That phrase is certainly evocative. But the image of even the most bloated pig does not really capture the reality of the American prison system. Don't think pig; think Leviathan.

Webb Hasn't Given Up On Sentencing Reform

noreply@blogger.com (Eric John Sponheim) — Fri, 19 Aug 2011 04:35:00 +0000

Jim Webb hasn’t given up on sentencing reform. He did announce in February that he’s retiring from the Senate when his term ends next year. In June, however, he published a Huff post essay reiterating the case for fundamental changes iu criminal justice policy and practice.

The talking points are painfully familiar to anyone who follows this under-reported issue. For example, let’s start with this: Why does a country with 5 percent of the world’s population hold 25 percent of the world’s prison population?

As Webb has pointed out, this figure could be taken one of two ways. It could be that we have a disproportionate share of bad actors in America. Or it could be that our criminal justice system is badly broken, so that is no longer able to distinguish between good and bad as it once did.

Which, dear reader, do you think it is? I’ve stated my view repeatedly in this blog for 2 ½ years. But I’d like to know your thoughts too.