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August 1, 2007

"Why Are So Many Americans in Prison?"

This title of this post is the title of this potent commentary the latest issue of the Boston Review.  Here are a few excerpts:

Never before has a supposedly free country denied basic liberty to so many of its citizens.  In December 2006, some 2.25 million persons were being held in the nearly 5,000 prisons and jails that are scattered across America’s urban and rural landscapes.  One third of inmates in state prisons are violent criminals, convicted of homicide, rape, or robbery.  But the other two thirds consist mainly of property and drug offenders.  Inmates are disproportionately drawn from the most disadvantaged parts of society. On average, state inmates have fewer than 11 years of schooling.  They are also vastly disproportionately black and brown....

My recitation of the brutal facts about punishment in today’s America may sound to some like a primal scream at this monstrous social machine that is grinding poor black communities to dust. And I confess that these brutal facts do at times incline me to cry out in despair. But my argument is analytical, not existential. Its principal thesis is this: we law-abiding, middle-class Americans have made decisions about social policy and incarceration, and we benefit from those decisions, and that means from a system of suffering, rooted in state violence, meted out at our request. We had choices and we decided to be more punitive. Our society — the society we have made — creates criminogenic conditions in our sprawling urban ghettos, and then acts out rituals of punishment against them as some awful form of human sacrifice.

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» The Incarceration Nation from Houston's Clear Thinkers
Following on this post from yesterday on a troubling growth sector in the burgeoning prison industry, Doug Berman points to this daunting Boston Review piece by Glenn C. Loury, the Merton P. Stoltz Professor of the Social Sciences in the... [Read More]

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Comments

Or maybe: 1) Americans are worse people than our European /Asian/African/Antarctician/Australian cousins; or 2) we have decided that society is better served by having a higher incarceration rate. It isn't hard to lower (or raise) the rate at will. Whether any criminal justice goals are acheived by raising or lowering the rate is a matter of perspective and politics.

Posted by: S.cotus | Aug 1, 2007 10:26:22 AM

Or perhaps it has so much to do with our drug policy.

Posted by: | Aug 1, 2007 10:47:46 AM

Perhaps these statistics are just one aspect of the current version of Jim Crow.

Posted by: defense attorney | Aug 1, 2007 11:21:17 AM

Perhaps, laws are passed to create money making businesses. Of course, you do know prison is a big money making business.

Posted by: | Aug 1, 2007 11:27:25 AM

Prisons are not a money making business. The % of for profit prisoners in this country is next to nothing. Firstly there is clearly a problem. 1 out of every 100 people in this country incarcerated? Secondly, the war on drugs is 10 times the quagmire Iraq will ever be.

Posted by: DAG | Aug 1, 2007 11:38:22 AM

Well, someone is making money easily enough to justify the “corrections” industry. If it were not profitable CCA and others would simply not exist. Likewise, the companies that market to prisons find a profitable business in selling to the government (some call this corporate welfare).

Prisons also provide jobs for guards who, for some reason like to spend all day in jail.

I don't know if the "war on drugs" is a quagmire. We can "get out" easily. The tobacco industry would be more than happy to switch fill the pot needs of Americans. The only problem would be a sudden glut of law enforcement types with nothing to do, but, quite frankly, I am sure that we could find something to keep them busy until retirement.

Posted by: S.cotus | Aug 1, 2007 11:57:24 AM

The opening claim of the excerpt - "Never before has a supposedly free country denied basic liberty to so many of its citizens" - is false b/c it is too broad. It's true as to criminal incarceration. But in the broader realm of "denying basic liberty to citizens," involuntary mental institutionalization would seem to count as well.

In 20th century America, criminal detention rates soared, but involuntary mental institutionalization dropped dramatically. From about 1934-1961, the combined rate of detention and institutionalization was about 7-8 persons per 1,000. Today, the rate is about 6 per 1,000.

I do not mean to detract from the article's premise, which is that the US today jails a staggeringly high percentage of its population. But involuntary mental institutionalization is a key part of the picture, and a key part of understanding how "free" societies deny liberty to their citizens.

See details at:
http://volokh.com/archives/archive_2007_04_29-2007_05_05.shtml#1177939981

Posted by: JWR | Aug 1, 2007 11:57:34 AM

I don't think that the for-profit prison industry has anything to do with it. That industry's impact on the economy is negligible.

A few things things happened. First, a generation of lawmakers got elected on the promise of being "tough on crime." That practically always translated to enacting more crime statutes and tougher sentencing.

Second, we made a nationwide decision that prison was the answer for the drug problem.

Third, anytime there was a noteworthy case, even if it was exceptional, and not likely to be repeated, legislatures always thought that the laws needed to be toughened. So people like Jamie Olis get caught in the jaws of tough post-Enron white collar crime laws.

Reversing these errors is difficult. Only a minority of voters have much sympathy for convicted felons. Any legislator who advocates less prison time for criminals becomes an easy target for opponents, who will say he's "soft on crime." It's the proverbial one-way ratchet, because once enacted these laws tend to remain on the books, because few legislators have the courage to vote to repeal them.

Posted by: Marc Shepherd | Aug 1, 2007 12:44:54 PM

Marc, so what do you suggest we do?

Posted by: | Aug 1, 2007 12:54:49 PM

Reversing these errors is difficult. Only a minority of voters have much sympathy for convicted felons. Any legislator who advocates less prison time for criminals becomes an easy target for opponents, who will say he's "soft on crime." It's the proverbial one-way ratchet, because once enacted these laws tend to remain on the books, because few legislators have the courage to vote to repeal them

So... the problem is democracy?

Posted by: | Aug 1, 2007 1:07:35 PM

"So... the problem is democracy?"

The problem is mob rule fueled by disingenuous politicians who only care about getting elected and staying in office; anyone who thinks these folks are looking beyond the next election is kidding themselves.

Marc Shepard's comment accurately describes, at a high level, most of the major key points related to why so many Americans are in prison.

Posted by: | Aug 1, 2007 2:02:37 PM

Yes, of course the problem is Democracy. Or at least Democracy the way we know it. In fact, Marc is right: non-lawyers are so divorced from legal decision-making that they have no way of even judging the real threats to society that specific individuals have. Yet, somehow they are expected to make policy decisions (via popular votes) based on this imperfect and over-complex information.

For this reason, I think that non-lawyers really should not be involved in the process of decision-making. They bring nothing to the table. They repeat the most simplistic of soundbites, and can be taught to repeat almost anything.

There are a few experimental solutions to the problem. For instance, California has a system of “grand juries” where citizens are paid to analyze certain government agencies. Likewise, paid citizen legislatures might develop the ability analyze things in detail.

But I differ with Marc about the money involved in incarcerating people. Just because there are only a few private “corrections” companies out there, doesn’t mean that it the corrections industry doesn’t generate money. Even if a prison is run by a government, people are making money. Not just uneducated guards. (Degrees in criminal justice don’t count.) But, everyone that participated in putting someone in jail owes a bit of their livlihood to this “industry.” This includes educated people such as judges, and the lawyers involved.

Posted by: S.cotus | Aug 1, 2007 2:18:53 PM

How many non-violent prisoners are there?

As an exercise I took all 8,248 Iowa prison inmates committed by an Iowa Court and removed all violent prisoners (including those with weapons charges) and all those serving mandatory minimum sentences. I also removed those who had returned to prison.

The remaining list is an approximation of the list of all non-violent new prison admissions. I was left with 2,079 inmates or 25% of the initial set of inmates. Burglary (510), Theft (392), drug trafficking (327)and DUI (148) totaled 1,377 or 16.7% of the original set. Now some people will argue that burglary, drug trafficking and DUI are all threats to public safety and should be removed from the list. If so the number 1,094 or 13.2% of all Iowa sentenced inmates.

Posted by: JSN | Aug 1, 2007 2:37:58 PM

JSN writes:

How many non-violent prisoners are there?

As an exercise I took all 8,248 Iowa prison inmates committed by an Iowa Court and removed all violent prisoners (including those with weapons charges) and all those serving mandatory minimum sentences. I also removed those who had returned to prison.

If you're trying to figure out how many "non-violent prisoners" there are, why would you remove "all those serving mandatory minimum sentences" and "those who had returned to prison"?

Posted by: | Aug 1, 2007 2:59:05 PM

Most mandatory minimum sentences are for violent crimes. If there is a mandatory minimum for drug trafficking there is a reason (involving violence or a threat to public safety). I removed the returnees because I do not believe people in Iowa would agree to release recidivists.

Posted by: JSN | Aug 1, 2007 3:11:34 PM

Thanks for the response. I suppose I'm skeptical of the recidivism argument, but the mandatory minimum one makes sense as far as I'm aware.

Posted by: | Aug 1, 2007 3:28:35 PM

If you are trying to extrapulate the percentage of non violent offenders in out nations prison with that reasoning your way off. Marc is right, who is going to get elected giving speeches about the unfairness of life sentences for white collare criminals? Its up to out non elected judges to use common sense, enjoy Booker and depart. Big time.

Posted by: DAG | Aug 1, 2007 7:58:31 PM

But DAG, even Judges are afraid to work around these draconian laws. Remember, Bush administration told the US Attorneys to report Judges who are being lenient. Actually, they sort of intimidated the Judges.

Posted by: | Aug 1, 2007 10:28:36 PM

First it is incorrect to state that most mandatory minimum sentences are for violent offenders. Many 20-30 years mandatory minimum sentences are given to FIRST-TIME, NON-VIOLENT offenders!! Second anyone that wishes to claim prisons are not money generating business has not truly done their research! They are BIG business. And yes I've worked for the BOP and have seen it first hand!

Posted by: NLS | Aug 2, 2007 12:08:19 AM

First it is incorrect to state that most mandatory minimum sentences are for violent offenders. Many 20-30 years mandatory minimum sentences are given to FIRST-TIME, NON-VIOLENT offenders!! Second anyone that wishes to claim prisons are not money generating business has not truly done their research! They are BIG business. And yes I've worked for the BOP and have seen it first hand!

Posted by: NLS | Aug 2, 2007 12:09:31 AM

Please rememer that part of the reason we lowly non-lawyers are so easily convinced to go along with ever more punitive criminal justice policies is the news media, which is anxious to convince us that there are murderers and rapists and child-snatchers lurking behind every bush. And please don't ask me to believe that the private prison companies, guards' unions, legislators who want to appear tough on crime (and get nice big contributions from the above), and everybody else who makes money from prisons has nothing to do with this.

Most people I have talked to (no, it's not a scientifically-selected sample) have the impression that everybody in prison is murderers and rapists. Obviously this is not carefully thought out. It is a panic reaction on the public's part. And I certainly am not defending that anti-intellectual bent of many people (they just don't want to know) or our apparent tendency to be scared of everything when we are told to be scared by authority figures.

But rather than just saying we're too dumb to be involved in the decision-making, since, like it or not, we happen to be a democracy (sort of), perhaps one answer might be to work to educate the public about these matters. Yes, the law is incredibly complex. But we do have civics and law courses for high school students, at least in some schools. We could make a basic understanding of the law and the criminal justice system a part of every college student's education. Just as an example, I have two students at an expensive private college who have expressed an interest in becoming FBI agents. One has graduated and is attending a state highway patrol academy this summer. Neither of them was aware of the number of people in our prisons or the number of people who have been exonerated through DNA. Neither of them are aware of actual prison conditions or lawsuits about such things, even though they are planning to spend their lives sending people there. One is from Michigan and had never heard of the Timothy Souders case.

You people could do something to change this. But as long as your attitude is that the public is an annoying bunch of dolts who just need to shut up and go to prison when they're told to, I am not optimistic. Some of us out here in non-legal land are trying to educate ourselves, because we realize that the policies which send millions of Americans to prison, systematically make them non-functional, and then turn them loose to live next to us are not protecting our safety. We also occasionally reflect upon inconvenient and apparently outdated concepts like right and wrong and justice. Unfortunately, we just don't understand when a legal technicality make wrong into right. We are consistently met with snobbery and hostility from lawyers who feel we should not dare to peek through the portals of their hallowed halls. I personally do not want to live in a dictatorship of lawyers or anyone else. Remember, democracy is the worst form of government--except for all the others.

Caveat: Scotus, just in case you were being sarcastic, you may disregard the above.

Posted by: disillusioned layman | Aug 2, 2007 10:14:57 AM

"We are consistently met with snobbery and hostility from lawyers who feel we should not dare to peek through the portals of their hallowed halls. I personally do not want to live in a dictatorship of lawyers or anyone else. Remember, democracy is the worst form of government--except for all the others."

Now, that what I'm talking about. You go guy!

Posted by: | Aug 2, 2007 10:58:45 AM

That's right layman. Some people just don't have any consideration for what they say. Some people should think before they speak (write). As long as we have people (like some of the people) that just react rather than think first nothing will ever change. I gave up on the justice system long ago.

Posted by: jubria | Aug 2, 2007 11:55:50 AM

Jubria, it would be really easy to give up on the justice system, just like many of my middle-class friends have given up on voting. But it's all we've got. Do you think trying to argue with you guys and being treated like a moron is fun? But what's the alternative?

Think about the response to the federal prisoner who wrote in regarding Libby's clemency. Instead of expressing any support for his courage in speaking out (and, believe me, it does take guts to speak out in prison!), other prisoners actually told him to shut up and do his time. In another time in the south, they would all have been dog boys! So the answer is to learn to love Big Brother? I don't think so!

Posted by: disillusioned layman | Aug 2, 2007 12:20:18 PM

I'm wondering if there were commercials that advertise the type of punishments one will get for committing crimes, explained how sentencing guideline will determine their sentence.(Advisory)Will we see any decline in crimes? About this, a commercial that show how the sentencing process go. That way Juries would have an ideal that even if they find you not guilty of some of the charges, the defendant will still get punish for the acquitted charges. Hell, commercials are able to scare and convince people about how horrible criminals are, why not scare the people with the reality of the Judicial system.

Posted by: | Aug 2, 2007 1:00:15 PM

“Bush administration told the US Attorneys to report Judges who are being lenient”

This statement doesn’t make sense.

First, whether a judge is being “lenient” is a matter of law, or at least a matter of perspective. However, Pre-Booker, the administration was making a show of collecting data on downward departures. Since they have access to all sentencing data in federal courts, at best, they are engaging in legitimate data collection.

Second, “report” – to whom? These judges have life tenure. If the government thinks that the sentence violates the law they can, should, and do appeal them.

Third, really... judges are not intimidated by the US Attorneys. I know many federal judges (none of which were being considered for the Supreme Court), being “reported” was the least of their concerns. Somewhere under “parking spaces.” Life tenure reorients your priorities.

Disillusioned Layman, “Educating the public” is what Public Relations firms do. Strangely, not everyone agrees about how the public should be educated, and the public is in no position to choose which paradigm to buy into.

Some people think the public should be educated about the danger of all your neighbors being criminals. They can tell you with a straight face, that this is true.

Posted by: S.cotus | Aug 2, 2007 1:19:27 PM

And it is definitely scary! I don't know if that's the best way, but it sounds like it might be worth a try. There certainly should be some way for jurors (who are potentially all of us) to have some idea of the implications of what they are doing. I have read that Genarlow Wilson's jury had no idea what the sentence would be when they convicted him.

I also can practically guarantee you that if you select anyone off the street at random, they are likely to say you're nuts if you tell them that they can be sentenced for things a jury decided they didn't do. (If you pretend you don't know anything about the law and take that statement at face value, it does seem pretty improbable.) I can also tell you that there are a fair number of educated people out there who think everyone who is charged with something gets a trial. Hmmm, now there's an idea. If you could convince everyone who was charged with a crime to demand a trial (to which I am told they have a right), maybe prosecutors would start to use some common sense in deciding whom to charge.

Posted by: disillusioned layman | Aug 2, 2007 1:27:29 PM

Scotus, I have other things I need to be doing today, but that is just too much. You speak of the public as if it is something you don't want to step in for fear of soiling your expensive shoes. Well, somewhere back in all those legal documents you lawyers purport to revere is one that begins, "We the people of the United States..." That's us, sir, the people. The ones who pay your salary and for whom you supposedly work (assuming you are a judge).

For your information, schools and universities are the entities which are charged with educating the public. Public relations firms are paid to put out propaganda. There is a difference. One of the purposes of schools and colleges is to teach people how to make informed decisions about which paradigms to buy into--and how to ignore public relations firms! Not everyone will agree about which paradigms are appropriate or how this is best achieved. But the fact that schools and colleges are not doing their job as well as they might does not mean that we shouldn't keep working to improve matters. This may sound idealistic or even unrealistic, but a couple of hundred years ago, breaking away from England and fighting off their army probably seemed kind of unrealistic, too.

Posted by: disillusioned layman | Aug 2, 2007 1:50:52 PM

The implication that prosecutors, as a class, do not use "common sense" in deciding whom to charge is pretty offensive.

Posted by: Ben D | Aug 2, 2007 1:53:31 PM

Disillusioned, On the contrary, I think many members of the public think that once someone is convicted of a crime they can be sentenced to anything. But, as you do seem to acknowledge, it is all in the rhetoric. Consider these two questions:

1) Should people be sentenced to jail time for crimes they were not found guilty of?

2) Are convicted criminals entitled to a second jury trial and a second determination by of guilty beyond a reasonable doubt of any fact that might increase their sentence?

Ben D, Whether people are “offended” or not is irrelevant. I am sure that a lot of people in jail are offended by the notion that they are in jail. However, their offense is not a legally cognizable injury, and they will likely stay in jail.

However, since “common sense” is a pretty empty rhetorical term, anyone can claim it, and there is no way to prove them right or wrong. In fact, I am pretty sure that absolutely no brief field at a court of appeals includes the language “our position and behavior defies common sense.”

Posted by: S.cotus | Aug 2, 2007 2:51:02 PM

S.cotus, whether or not something is "relevant" depends on its context. To compare the relevancy of a prisoner's offense at being in prison to a prosecutor's offense at being told that prosecutors, as a class, do not exercise common sense (or seek justice or act ethically) is pretty silly. To put this in equivocal enough terms for you, not only is such an implication offensive, based on my experience, it is also inaccurate.

On a side note, I have a mountain of caselaw research here that establishes that the word "clearly" actually does have content. Silly retroactivity.

Posted by: Ben D | Aug 2, 2007 3:30:50 PM

It is not clear whether many of the commenters above actually read the article in question. The article details how the past few decades of war on drugs and crime and aliens have disproportionately impacted and destroyed non-white communities in this country, and that in fact the tough-on-crime-and-criminals policies have in fact increased, not diminished, crime by making it nearly impossible for those released from prison to reintegrate into the community and damaged their families and children.

Posted by: defense attorney | Aug 2, 2007 3:45:16 PM

Ben, Strangely enough your mountain of caselaw regarding whether the word “clearly” has content can easily be rebutted by another court saying that the opposite is true. (In fact, there are at least two circuit splits I know of that, while not of interest to this blog, radically change the procedure for reviewing agency decisions – and all readings are based on a “clear” or “plain” meaning of a statute.) So, while “clear” and “common sense” might have content to you, they are like “beauty” which is in the eye of the beholder (and people that want to curry favor with them by agreeing with them).

Now, of course, prosecutors “seek justice.” Why? They swore to do so, and they always provide lip service to that ideal. But, in every case are the “seeking justice”? Or, are they 1) fulfilling a political role (not always a bad things); or 2) enhancing their careers (not always a bad thing); or 3) deciding which cases to not aggressively prosecute in order to prosecute others, that they perceive as more serious (not always a bad thing).

Posted by: S.cotus | Aug 2, 2007 4:28:38 PM

I agree with "defense attorney." The interesting part of the post is the article, not what a bunch of anonymous people with internet connections think about prosecutors and voters generally.

Turning to the article itself, I think it's interesting, promising at parts, but ultimately pretty bad. The part I find most objectionable is this:
If we take these questions as seriously as we should, then we would, I expect, reject a pure ethic of personal responsibility as the basis for distributing punishment. Issues about responsibility are complex, and involve a kind of division of labor—what John Rawls called a “social division of responsibility” between “citizens as a collective body” and individuals: when we hold a person responsible for his or her conduct—by establishing laws, investing in their enforcement, and consigning some persons to prisons—we need also to think about whether we have done our share in ensuring that each person faces a decent set of opportunities for a good life. We need to ask whether we as a society have fulfilled our collective responsibility to ensure fair conditions for each person—for each life that might turn out to be our life.

We would, in short, recognize a kind of social responsibility, even for the wrongful acts freely chosen by individual persons. I am not arguing that people commit crimes because they have no choices, and that in this sense the “root causes” of crime are social; individuals always have choices. My point is that responsibility is a matter of ethics, not social science.

If we reject the idea that people are responsible moral agents who can be punished for committing crimes, then the alternative is to treat people like good and bad bacteria.

Certainly, we would have to ask ourselves "whether we have done our share in ensuring that each person faces a decent set of opportunities for a good life." We should certainly try not to have a society that encourages people to turn into criminals. But that's just like preventive medicine over remedial medicine.

The other side of that point is the question of what we do with people who have become criminals. Regardless of the cause, if they can't be punished as moral agents and can't be rehabilitated, the logical alternative is to incapacitate them up or have them put down for the protection of the rest of us.


Loury claims that the rise of the retributive ideal has turned our society into one in which "Felons are no longer persons to be supported, but risks to be dealt with." In my view, he has it backwards. Getting rid of the retributive ideal or downplaying it has that effect.


My other major complaint about the article is that Loury frequently juxtaposes observations about race relations in America with observations about how our society has become "more punitive," but he never makes a convincing case--or, really, any case--for why and how those things are related. The closest he comes is to lay it at the feet of "the media." He says:
This new system of punitive ideas is aided by a new relationship between the media, the politicians, and the public. A handful of cases—in which a predator does an awful thing to an innocent—get excessive media attention and engender public outrage. This attention typically bears no relation to the frequency of the particular type of crime, and yet laws—such as three-strikes laws that give mandatory life sentences to nonviolent drug offenders—and political careers are made on the basis of the public’s reaction to the media coverage of such crimes.

Loury certainly thought long and hard about the issue, but I don't think he gained much from his reflection. In the end, it strikes me as one more article preaching to the choir about "racial disparity" in the prisons without making a convincing case that the "disparity" is unjust or putting forth any good ideas about what to do about it.

Posted by: | Aug 2, 2007 5:45:07 PM

S.cotus...every term of art can be argued over in terms of its precise definition, but if it's a standard by which a balancing test is decided, it has content whether "S.cotus Law Dictionary" defines the term or not. In Ohio at least, whether or not the legislature has "clearly expressed" its intent for a statute to apply retroactively is part of such a test. The one thing that the "non-lawyers" that you loathe so much have going for them is the standard ability to not attempt to be hypertechnical about anything that is contrary to their argument. Of course, we can also argue whether the background of this website is red and white or black and blue in some type of Descartian philosophy debate hypertechnical argumentation has its "common sensical" limits and too often lawyers wade far and deep beyond those limits...I submit this is what you're accomplishing. Plus, c'mon, everyone knows this page is black and blue. :)

The point is just because the precise definition is slippery doesn't mean the term doesn't mean anything.

Posted by: Ben | Aug 2, 2007 7:51:59 PM

S.cotus, in response to your questions:

1. Quite simply, no. The idea of sentencing someone for conduct of which they were acquitted (or not charged at all) is antithetical to any notion of justice with which I am familiar. If judges can sentence you for conduct of which a jury did not convict you based on a "preponderance of the evidence," why bother with juries at all? Forget "beyond a reasonable doubt."
Just let a judge do it. Conversely, if a jury is used to determine guilt, then it should determine guilt, period.

2. In Booker, the Supreme Court restated what had been decided in Blakely: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Although obviously the application of Booker and Blakely has proven to be complicated, and I certainly don't claim to understand it all, it would seem on the face of it that if you want to use facts other than prior convictions to increase the sentence beyond the maximum defined by the relevant guidelines, either bring them up at the first trial, or have a second one.

Let me give you an example of why this concerns me. My interest in sentencing began with a friend's trial. He was sentenced to the maximum possible at the time based in part on the fact that he had a criminal record. This was before Blakely, so there was an absolute upper maximum to which the judge was limited. I have no problem with the concept of increasing a sentence for someone who has either pled guilty to or been convicted by a jury of other crimes. A burglar, for example, who has previously robbed 10 people is probably more dangerous and should go to prison for longer than one who has never robbed anyone before. However, one of the things that seemed to particularly bother the judge in the sentencing hearing was a discrepancy regarding my friend's age. The judge stated, "You lied about your age on your driver's license. You're really much older than you say you are." The crime of which my friend was convicted had nothing to do with a child or an underage person which would make his age relevant. In fact, I had gone with him to get his driver's license at which time he had to present his birth certificate. The problem with his age stemmed from a conviction some 30 years in the past when a mistake was made regarding his age. So what, in the judge's mind, constituted lying and apparently made this crime more egregious was simply not true. It was based on an erroneous assumption made by the judge. Had my friend's age been relevant to the case and brought up in court, then evidence could have been presented (namely, his birth certificate) that he had not lied. In the sentencing hearing there was no way to do this. This is why I do not believe that judges should be making these kinds of determinations.

Regarding what members of the public think about sentences, they make offhand comments about what criminals deserve until the accused is their relative or friend or themselves. This, again, is based on the public's lack of knowledge about such matters which, I firmly believe, should be corrected by educating people about how our legal system works, preferably while they are still in high school and college.

Posted by: disillusioned layman | Aug 2, 2007 8:05:29 PM

| Aug 2, 2007 5:45:07 PM,

Here is an example of society (the government) not taking any responsibility. Two federal judges recently ruled that California prisons are illegal because they cannot meet the minimum constitutional standards, predominantly because of health care, including mental health. California's solution is to build more prisons though it cannot properly fund and staff the prisons it already has. And now the governor wants to take it to trial (appeal the decision of federal control of the prisons).

What if it were a state or federal defendant shirking and shifting responsibility and blaming the system like that? This in essence is the spring board from which government responsibility is founded nowadays, and we find it in many innocence cases where the state fights against DNA testing that may prove they botched the conviction and the government even fights against exoneration once it is clear it would be the right thing to do.

The government does not practice what it preaches. When the pendulum swings too far in the direction of "personal responsibility" it opens the door to government irresponsibility. The only thing missing from the analogy is sentencing California based on non-convicted crimes. Since no crime is too old, why not sentence California now for its eugenics practices in the early 1900s? Gov. Davis saying he was sorry isn't good enough. Might as well balance the responsibility scales and sentence California like it sentences individuals. Not incarceration, of course, but a just sentence.

In fact, California has a history and will probably commit future bad acts, and should probably be civilly committed for public safety.

Posted by: George | Aug 2, 2007 8:29:21 PM

If "society" or "the government" is to blame for the criminals, then what is to be done about the criminals it's "created"?

If they're not responsible for themselves, then they can't be punished...

The rest of your (8:29) post makes no sense. If you seriously mean to argue that "California" should be put in jail, then I don't know what to say to you.

Posted by: | Aug 3, 2007 1:57:57 AM

Disillusioned, Distilling most of this blog into one sentence: your view of Booker is complicated by view that so long as the guidelines are not mandatory, your view of Blakely does not apply.

Again, you go back to the “educating” paradigm. While I might agree with you, there are plenty out there who think that the public should be educated about the “dangers” of people NOT being in jail. In fact, they would point to examples of criminals committing crimes after they were released, and they would have had a higher sentence had they been sentenced based on some other conduct. They would also say that your views are irrelevant (to “educated” people) because you hang out with convicted criminals and don’t care about “innocent” victims.

The only way, I would argue, to “educate” people is to simply exclude the uneducated from public discourse. Until people have graduate-level educations in a given subject, pretty much everything they have to say is worthless.

Posted by: S.cotus | Aug 3, 2007 6:14:20 AM

Of course California should not be put in jail.

But Florida should be. Three strikes and it is out!

Posted by: S.cotus | Aug 3, 2007 6:15:18 AM

This is a great comment string, folks, but S.cotus, I can't help but respond to your provocative line, "I think that non-lawyers really should not be involved in the process of decision-making."

It's funny, my experience in the legislative process has led me to believe exactly the opposite: Nobody is worse at writing laws than lawyers - even lawyers on my side, at least practicing ones.

I've come to believe the reason is that lawyers think about the law differently than the people to whom it's applied. They're taught to apply "legal reasoning," which quite simply is an alien concept to governance. It requires a suspension of disbelief and an ability to ignore reality in which politicians cannot afford to indulge. Lawmakers must write laws to say precisely what they mean. Lawyers make their living arguing interpretations of the law, so they tend to write statutes with lots of wiggle room, caveats and outs. Governance requires a bolder approach, to limit that tendency instead of encourage it.

With all respect, I might be more offended if the hubris in the comment weren't so damn funny! Personally I might support a ban on barristers' participation in any but an advisory role. ;) best,

Posted by: Gritsforbreakfast | Aug 3, 2007 9:03:02 AM

Thank you, Gritsforbreakfast. I agree. To someone who is not a lawyer, the mental machinations involved in some interpretations of the law are simply breathtaking--like sentencing people for stuff the jury decided they didn't do.

S.cotus, you are entitled to your viewpoint. Unfortunately, the fact is that it is totally at odds with what the founders of this country designed. For them, the criteria for participation in public decision-making were being white, male and a property owner. Subsequently that right has been extended to those of us who are not white, not male, and not property owners. Nothing about graduate degrees there.

So my views are irrelevant because I "hang out" with convicted criminals. That would mean that the families and friends of all convicted criminals, past and present, are irrelevant. Given the millions of people in prison, that's a lot of people! In fact, given the discussion in the article in question, entire inner city communities' views are now irrelevant. (But that's OK because most of them probably don't have graduate degrees either.) What about defense attorneys? They "hang out" with criminals. So their views are irrelevant, too. Only the views of prosecutors and judges are relevant, because, while they associate with criminals, they don't advocate for them. So who's left? Certainly not all people with graduate degrees. The set containing them certainly overlaps with the set of convicted criminals and their families (e.g., all the MBA's in Enron, etc.). So we're left with a really small subset of people who get to decide how the rest of us live. This is absurd.

Unlike Gritsbreakfast, I don't consider your comments funny at all. Actually, they are frightening, because you are a person who clearly (not used as a legal term) does not believe in the principles on which this country was founded and yet are apparently in a position to make judgments about how its laws should be interpreted.

Posted by: disillusioned layman | Aug 3, 2007 9:30:21 AM

If the harsh laws that keep getting passed are really so wrong, it seems strange that legislators can't convince their constituents of that.

Marc Shepherd says this:
Reversing these errors is difficult. Only a minority of voters have much sympathy for convicted felons. Any legislator who advocates less prison time for criminals becomes an easy target for opponents, who will say he's "soft on crime." It's the proverbial one-way ratchet, because once enacted these laws tend to remain on the books, because few legislators have the courage to vote to repeal them.

I understand the argument that public opinion tends to focus on the "crime du jour" and deal with it by imposing harsher punishments. Right now it's sex offenses generally. A few years ago it might've been financial crimes, like Enron. In the '80s, it was drugs. If the tide of public opinion is pushing for more punishment, then it's hard to stand up to that.

But why is it so hard to repeal these laws once the storm blows over and the public moves on to something else? The view that drug laws are too harsh seems fairly widespread today, and I'm extremely skeptical of the argument that a legislator who tried to reduce the length of drug sentences would be labeled as "soft on crime" to the extent that he'd fear losing his seat over it (some people would level the criticism, of course, but that's true of every move a legislator makes).

3 years ago, New York made such a move. I don't recall a public outcry to the effect that the state would soon be overrun with criminals...
Michael Cooper, New York State Votes to Reduce Drug Sentences, N.Y. TIMES Dec. 8, 2004.

Most voters can understand the concept of a mistake, a second chance, and a crime that is relatively minor. Single-incident anecdotes of bad people committing crimes can be countered with single-incident anecdotes of people whose lives are ruined when they shouldn't be. I would think so, anyway.

I agree with Mr. Cotus that people are generally stupid sheep, but government by the herd hasn't served us that badly, and I'm not sure why they can't be convinced of the arguments that some are saying they can't comprehend.

Posted by: | Aug 3, 2007 9:34:15 AM

So we're left with a really small subset of people who get to decide how the rest of us live. This is absurd.

It's not absurd. It's how a lot of countries run. Some would say it's ideal, except for the problems of (1) corruption, and (2) implementation in selecting the right subset.

Posted by: | Aug 3, 2007 9:35:52 AM

Of course it is how a lot of countries are run. Until recently, I didn't think I was living in one of those countries. And I don't want to live in one of them. By some accounts we're in Iraq to bring democracy to them and the whole Middle East. So what, exactly, does democracy mean? I didn't think the definition was a dictatorship of oil companies (and lawyers and people with graduate degrees, of course).

But seriously, what I am seeing in some of the comments in this blog is what I have observed in my real-life legal experiences. You guys can twist the law to justify just about anything. I keep coming back to my one real-life experience with the legal process. The transcript of my friend's trial was substantially altered to remove statements which could have provided the basis for an appeal. It is my understanding that this is not legal. I have run this fact past several attorneys. One stated that they wouldn't have had any reason to "clean up" the transcript because they didn't think we were planning to appeal. This tells me that transcripts are sometimes "cleaned up" to prevent an appeal. A couple of others, when asked directly whether this was illegal, said, "Well, it all depends..."

No, guys, it doesn't depend. It's called
WRONG. When the people who are determining whether we live or die or spend our lives in prison have lost the ability to say something is just plain wrong, our society is in serious trouble.

Posted by: disillusioned layman | Aug 3, 2007 10:26:23 AM

Of course it is how a lot of countries are run. Until recently, I didn't think I was living in one of those countries

No one's saying that that's how the United States works.

There's a huge difference between saying "I have elitist tendencies" and "the United States should be run by an oligarchy of educated people." That, and S. Cotus's chosen mode of expression usually involves a healthy dose of sarcasm.

Posted by: | Aug 3, 2007 10:32:28 AM

Wow, there are some scary people here. "lock everybody up and throw away the key." The absurdity of this comment has really manifested into our society. While we can debates all day who is right, about a compromise here. Only sentence people who either pleaded to or found guilty of a crime. No one sentence should be increase for a crime he/she has been acquitted of. Now, was that hard? Nah, I didn't think you would fall for this. After all, what do I know, I am irrelevance. I am not a lawyer nor have a degree and I certainly have friends who are convicted felons.

Posted by: | Aug 3, 2007 10:39:11 AM

Of course it is how a lot of countries are run. Until recently, I didn't think I was living in one of those countries. And I don't want to live in one of them. By some accounts we're in Iraq to bring democracy to them and the whole Middle East. So what, exactly, does democracy mean? I didn't think the definition was a dictatorship of oil companies (and lawyers and people with graduate degrees, of course).

But seriously, what I am seeing in some of the comments in this blog is what I have observed in my real-life legal experiences. You guys can twist the law to justify just about anything. I keep coming back to my one real-life experience with the legal process. The transcript of my friend's trial was substantially altered to remove statements which could have provided the basis for an appeal. It is my understanding that this is not legal. I have run this fact past several attorneys. One stated that they wouldn't have had any reason to "clean up" the transcript because they didn't think we were planning to appeal. This tells me that transcripts are sometimes "cleaned up" to prevent an appeal. A couple of others, when asked directly whether this was illegal, said, "Well, it all depends..."

No, guys, it doesn't depend. It's called
WRONG. When the people who are determining whether we live or die or spend our lives in prison have lost the ability to say something is just plain wrong, our society is in serious trouble.

Posted by: disillusioned layman | Aug 3, 2007 10:57:40 AM

The transcript of my friend's trial was substantially altered to remove statements which could have provided the basis for an appeal. It is my understanding that this is not legal. I have run this fact past several attorneys. One stated that they wouldn't have had any reason to "clean up" the transcript because they didn't think we were planning to appeal. This tells me that transcripts are sometimes "cleaned up" to prevent an appeal. A couple of others, when asked directly whether this was illegal, said, "Well, it all depends..."

Assuming that your summary of the facts is accurate, of course it's wrong, but your attorney friends are probably asking you what the harm is. If the result of the trial was going to be the same regardless, and no one was going to ask another judge to look at the transcript, then it's still wrong to "clean up" the transcript, but what's to be done about it?

Posted by: | Aug 3, 2007 11:29:38 AM

Huh? Do they really clean up the transcript?

Posted by: | Aug 3, 2007 12:42:04 PM

You are correct to question whether my summary of the facts if correct. And I am biased, because I firmly believe my friend was not guilty. All I can say is there was a group of middle-class, professional people who sat through the entire trial and subsequently agreed that certain parts of the transcript did not accurately reflect what they heard at the trial. Had two statements in particular remained in the transcript, an appeal might have been possible. You are saying, even if it's wrong there's nothing to be done about it. I do understand the concept of "harm." However, I have a problem with judges deciding there was no harm because they somehow know what the jury would have done had something in the trial been different.

My point is that the law does not provide a way to rectify some things which, to someone outside it, appear patently wrong or unjust. Perhaps a more egregious example is the man on death row who was told by a judge the date by which his appeal had to be filed, filed it in good faith, and had his appeal turned down because the judge had made a mistake. I did read the reasoning involved, but I do believe the average person would think this was glaringly unjust. So a disconnect has developed between what people who are not lawyers tend think of as right and wrong and what is actually practiced in the legal system. While I am not sure this is totally avoidable, I do think it presents a problem. I can tell you that being caught up in our legal system feels like you have been kidnapped by some sort of surreal, irrational Frankenstein monster from which there is no escape, even if you haven't done anything.

One thing about the current discussion is that lawyers and non-lawyers are actually talking to each other and taking each other somewhat seriously. This is not a common occurrence. Normally lawyers simply lecture the rest of us, patting us figuratively on the head like little children who couldn't possibly understand and should just do what we're told. I realize I'm being ridiculously idealistic again, but I didn't think that was how a democracy was supposed to work.

Posted by: disillusioned layman | Aug 3, 2007 12:47:13 PM

Grits, I always find it ironic that you are incredibly smart, and can think like a lawyer, but whenever you get the chance you defer to the lay people that inevitably screw things up. Maybe this is a mantra that you need to utter as part of your job. (Nothing wrong with that, I have said “If it would please the court” and “learned counsel” and “thank you,” many times, without meaning it.) Whatever the case, I do appreciate what you do, and I do understand that there is an important and sophisticated role for people that do what you do. So, if you are good at it, then “huzzah” I say – go it, and do it!

Disillusioned, I don’t know what the founders were thinking, and neither do you. We only have a bunch of public statements, scattered notes, and a few “operative” documents (i.e. the constitution). We also have their historical context, which is a bunch of reenactors. But, in the time of the framing of the constitution, the US was hardly egalitarian. There were rich people and poor people, and there were gaps between them. Many of the same institutions that we consider “elite” existed in pretty much the same form back then. On top of all of this, “slavery” (which I guess is the ultimate in elitism) was a political decision that was compromised at the start.

For my money, this country was only founded on “principles” found in the text of the constitution. (Maybe not even the bill of rights.) There is nothing in there that specifies that uneducated people can have a say in anything. Your argument about providing people with equal treatment, might be based on some reading of the 14th amendment, but even there I don’t see anything regarding a process whereby we pretend that uneducated people that call into talk radio programs really bring anything to the table.

But, there are positive attributes to the post-14th amendment. If you were to develop a sophisticated knowledge of something, your views would be taken seriously, regardless of your skin color or who your parents are.

Finally, Disillusioned, Just about every day I hear people complaining about injustices that happened to their friends. Where I come from this is considered rude because a person is supposed to not associate with the kind of person that injustices happen to (i.e. you don’t bring hobos into the home), and if there is injustice you rectify it in the absolute most mature way possible. To complain about some injustice that happened to your friend won’t help, and because you were not successful in court, says two things that: 1) you associate with criminals; and 2) someone lacked the technical sophistication to remedy whatever wrong there was. (And, yes, transcripts get screwed up, and there are ways to deal with them.) If, as another commentator proposes there was no prejudice to your friend then all you are saying is that you associate with criminals, which in many circles is considered rude.

Posted by: S.cotus | Aug 3, 2007 12:48:34 PM

Thanks for the compliment, S.cotus. But I really wasn't pandering when I say that - in my experience lawyers write really bad law! Maybe it depends on which lawyers get to do the writing. E.g., if you lived where criminal law was governed by the Texas Court of Criminal Appeals (the most bench-smacked high state court in the nation) perhaps you'd be less likely to defer to the pre-eminent wisdom of lawyers!

Plus, credential-wise, I've only got a high school diploma, so I can't very well let y'all squeeze me out of a place at the table, can I? ;)

Bottom line, especially having worked a while at ACLUTX, I'm really used to being told "you can't do that" by some lawyer, even friendly ones. Then a bunch of pols say "the hell we can't," do it, and once the law is changed the legal interpretations will follow. Writing the law and arguing it are different skills, IMO, and only a handful of people I've ever met have both. best,

Posted by: Gritsforbreakfast | Aug 3, 2007 1:53:21 PM

WTF! You only have a HS education?!@#!? GET OFF THE INTERNET !

Posted by: S.cotus | Aug 3, 2007 2:01:33 PM

S.cotus, the way things are going, the only way to make sure I don't associate with criminals will be to become a hermit and go live in a cave. And then, God forbid, I might be considered by some to be a hobo.

Regarding education, the vast majority of white male land-owners in the late 1700's were not "educated." Had the founders meant only educated people to participate in social decision making, they would not have designated them the way they did.

There used to be a concept called having paid for your crime, after which you had a chance to go on and do better with the rest of your life. I simply don't buy the idea that associating with people who have made mistakes and paid for them is "rude." Indeed, most professionals who work with such people feel that they are more likely to successfully rejoin society and refrain from committing more crimes if the rest of us do associate with and even support them. The circles you inhabit sound truly bizarre.


Posted by: disillusioned layman | Aug 3, 2007 2:05:15 PM

I've got quite a bit of college, from UT Austin, S.cotus, just didn't get the piece of paper. With a semester or so to go I got offered a dream job for a 22 year old as an investigative reporter at The Texas Observer, quit to take it and never returned. And until this year I was continuously employed, I've never worried about it.

But since you put it like that ... ;)

Posted by: Gritsforbreakfast | Aug 3, 2007 2:37:57 PM

Disillusioned, The concept that “called having paid for your crime, after which you had a chance to go on and do better with the rest of your life” really has little weight now. For one, I will not personally associate with felons. Few Americans would allow convicted child molesters to care for their children, even if they served every part of their sentence. Moreover, it is unclear whether it ever really did. Would people really treat convicted child molesters and rapists the same way as they treat everyone else?

While there are “professionals” that work with criminals and want the best for them, they fully know that there are boundaries between their personal lives and the criminal’s lives. They might want them to be “productive” but most of them understand that there is a difference between criminals and non-criminals.

Secondly, being a criminal is generally looked down upon. It virtually excludes one from many professional licenses (including membership in any most states’ bars), and it usually means that people have a good reason not to trust that person. And, since people need to trust me (often with their QTIP trusts), and the people that I deal with, we have good reason not to bring someone into our circle of trust that is not trustworthy. Trust me.

Finally, being a professional and associating with criminals on a professional level is different than taking them into your home, “hanging out” with them, marrying them, or hiring them.

And, yes, you might be considered a hobo. I guess that is your choice.

Posted by: S.cotus | Aug 3, 2007 3:22:40 PM

Wait, the "cleaned up" transcript was shown to the jury? AFAIK, juries don't generally get to see transcripts.

Posted by: | Aug 3, 2007 3:56:23 PM

S.cotus, I guess we will have to agree to disagree. You go right ahead and help rich people get out of estate taxes, and I'll go ahead helping people who don't have jobs or enough to eat and trying to educate the supposedly uneducable. I might even take a hobo into my home! I don't ever expect to have enough money to have a QTIP trust, and, you know what? I'm OK with that. As you say, it's my choice. As far as my clients in my own business are concerned, I have always found that the extent to which I enjoyed working with them tended to be in inverse proportion to the amount of money they had. Go figure.

Posted by: disillusioned layman | Aug 3, 2007 4:00:31 PM

No, the jury didn't see the transcript. The people I mentioned were the defendant's friends, not the jury.

Posted by: disillusioned layman | Aug 3, 2007 4:07:05 PM

Wow did you all ever get into a he-man match and off the topic of injustice/radical sentences and the fact that prisons are now a money making business and everyone knows that only leads to corruption. As for S.cotus you obviously were never taught "but for the grace of God there go I". Jesus on many occassions socialized with criminals and personally I hope to never meet you, but will pray you get the enlightenment you need to no longer be as closed minded as you apparently are. People make mistakes and deserve second chances. There is nothing just about a first-time, non-violent offender getting 20+ years because a snitch took a plea and they had nothing to offer up, or about a 70 year old man getting 20 years for delivering a package once because he could no longer afford his wife's health cost. The news media puts out too much "paroled convicted sex offender rapes child" and doesn't report on these types of sentences. I believe more citizens don't do anything about it because most don't know and the ones I tell can't believe it and let's face it in this generation are too selfish to do anything about it, if it doesn't affect them it's easy to turn a blinds eye. God help America! P.S. and anyone that wants to claim it's not about race is/was most likely in favor of slaverly but too "proper" to admit it.

Posted by: NLS | Aug 4, 2007 12:29:38 AM

NLS, thank you for a breath of fresh air and that nasty non-legal term, "common sense." The outrageous sentences meted out to some people should be a matter of concern for all of us. I remember in Sol Wachtler's book he described sitting with the head of the Federal Bureau of Prisons listening to someone argue for longer sentences, and the other man turned to him and said, "Doesn't he realize that anyone who spends ten years in one of my institutions is nonfunctional?"

You are right that most people don't know. When you tell them, they look at you like you're nuts. I still remember the look on my son-in-law's face when I told him you could be sentenced to a longer term for acquitted conduct. He just stared at me, shaking his head. And then there was my psychology professor friend who believed that everyone charged with a crime gets a trial. We don't know until we get caught up in it ourselves--and, since mistakes can easily be turned into crimes (see piece on children dying in hot cars), it may come as a total surprise. But then it's too late.

I am personally sick of all the news being about the evil paroled sex offenders. There just aren't that many of them. But there are a heck of a lot of homeless ex-cons with no jobs and no families to help them. I am more worried about being robbed by one of them because he can't afford to eat or get his fix (since he probably didn't get any drug treatment in prison) than about being pounced on by a crazed sex offender.

My friend who is currently in prison (with whom I realize I shouldn't be associating because it is rude) told me about a man in his dorm who was just released. He was 74, had been in prison 24 years, and was heading back to the town in New Jersey which he had last seen in the 1970's--with his $75 gate money. This is crazy.
I don't know what he did 24 years ago, and I really don't care. The fact is, now he has rejoined the rest of us and supposedly is entitled to the opportunity to succeed, and he doesn't have a snowball's chance in hell.

I do have one question for you, though. The number of people in prison is always couched in terms of race. And there is no doubt that the number of black people and other people of color in prison is obscene and that entire communities are being decimated by our policies. But in my state, over half the inmates are white. I think that the emphasis on race to the exclusion of a wider class problem is counterproductive. Specifically, it causes a large portion of the population--specifically the white middle class--to think it is not their problem (until their kid gets busted for drugs, of course). If you will pardon my sounding like a commie, the powers that be are, I'm sure, quite happy to keep white people worried about the sex offender hiding behind their azalea bush so they don't notice that the criminal justice leviathan is their problem too. As long as "we" can blame our crime problem on "them," we will never be able to unite as a society to solve one of our most important problems.

By the way, what do you think of Supercilious Contemptuous Overbearing Twit Uttering Sophistry?

Posted by: disillusioned layman | Aug 4, 2007 7:51:40 AM

Wow, disillusioned layman well said. Thank goodness, there are people out there like you. I wish I could express my dissatisfaction with our legal system like you. This country had gone mad.

Posted by: | Aug 4, 2007 11:48:24 AM

I just realized that I neglected to make one part of my point in my last argument. With the exception of the odd governor, legislator, business executive, judge and attorney in prison, most of the white prisoners are also poor and uneducated and come from disadvantaged (sometimes rural as opposed to urban) communities. Thus my point about the larger issue being poor people in general as opposed to race exclusively.

Posted by: disillusioned layman | Aug 5, 2007 12:33:07 PM

disillusioned layman, you brought up a good point that I only came to realize when I thought about it further. Yes I do believe that our prison problem is because too many regardless of their race can not afford/do not have the means/education once they find themselves in trouble. My personal experience has been to see blacks handed longer sentences than whites though. And I believe people still have too much prejudice they like to deny. But I beleive both cases speak to our country as a whole that we as a society look down upon others whether it be because of class or race etc. I also believe that we are purposely meant to be kept so busy trying to survive, keep our heads above water that we don't have time to look around and really ask the hard questions. How many people really care or can take the time anymore to know what they are voting for. I personally have written to many politians asking questions and when I receive their response am still wondering did they answer my question? That's off to a whole other subject though. I don't believe any of us that have truly had our eyes open to our justice system are talking about letting anyone off the hook completely. Only demanding for yes "common sense" to come back into the sentences handed out. Your quote by the head of the BOP is right on. Any staff member that hasn't been totally lost themselves from the demeaning work (anyone done research on the dysfunctional lives of these staff)would admit to the unjustness they see each day! Many times I have watched news specials where wardens have said that sentences are too long and the sentences make them worse than when they came in. But I suppose it is also considered RUDE to watch these programs so that may explain why more people aren't aware that even prison staff feel that way. Wake up everyone, these are comments from the people on the inside, spending their everyday with these prisoners. Why more of them won't stand up I don't know, other than to sadly say that it can certainly be a career stopper! TEN YEARS is plenty of time in prison for a 1st TIME, NON-VIOLENT offender! I dare say even too long! Does anyone ever look at the power given to our prisons now? Yes these rules are needed for our most serious offenders, for those that are a threat to society but unfortunately rules are rules period they are not simply handed out to the high-security inmates. The 300 minutes the BOP allows a month = on the average one 10 minute phone call a day to try to keep a relationship with your spouse, children, parents, siblings and so on. The visiting policies have now been written to only allow those with an "established relationship" to visit. Meaning if you only associated with those not too favorable before and your attempting even though in prison to create a new circle of friends/support... you do this how???
Let's go back to the fact of the financial circumstances of these families. The BOP can transfer you(and does)as long as you're within 500 miles of home. The financial burden is considerable, again making visiting virtually impossible. So you take a person and put them away for a quarter of their life, you take away everything they know, all their family, you give them no rehabilition, second chance (parole is gone), drug-treatment then you release them back to a world they have had no ties to and expect them to adapt and be able to become productive. Or are they just expecting them to be right back in prison so they can have more "slave labor" working in their factories and be able to say "see they can't function".
As for your last question... thank you, for taking a topic that can get my blood boiling because of peoples ignorance and yet you managed to give me a good laugh! I believe S.cotus should read more case law and transcipts where the judges quote how unjust they believe the sentence they are about to hand out is, but unfortunately they have no other choice.....when the judge says it's unjust....!?!?! Unfortunatley not enough people will be reading this to know yes it's really what is happening.

Posted by: NLS | Aug 6, 2007 12:56:00 AM

PBS just had a program on their POV series about Susanville, CA and its prisons (High Desert)in which it was pointed out that sentences in the US are 5 to 12 times longer than in other western countries. From what I have read, they do NOT have crime rates higher than ours. They also stated (and I have read different versions of this statistic) that ten percent of all the children in this country have a parent either in prison or jail or under some form of supervision by the "justice" system. What are we trying to accomplish? For a first-time, non-violent offender, what does 10 years accomplish that, say, two years would not, except to make this person more likely to commit crimes when he is released? The guy who is truly a knowledgeable criminal will probably get a shorter sentence, because he will know the ins and outs of plea bargaining and have other poor slobs he can rat on to get a reduced sentence. And he might even be able to afford a good lawyer!

I do not have much familiarity with the BOP, except what I read about it in the news and books like Wachtler's, but I have become intimately familiar with my state's system (as well as several other described to me in graphic detail by former denizens). And I must say that our state is in some respect light years ahead of some of the other systems.

For example, they have recently changed the visiting rules so that people don't have to have an established relationship with the inmate. When my friend went to prison almost three years ago, they wouldn't even let the minister from the church we were attending visit him. The minister had a drug record from almost 15 years ago. In fact, he had been in the county jail awaiting sentencing when he decided to turn his life around. He went to college, got a degree theology, and now , in addition to ministering to a congregation, teaches the spirituality part of the drug rehab course in that same county jail. I do believe they would let him visit now.
In addition, our state actually has a policy that an inmate can request a transfer to another prison if it makes visiting easier for the family. They just have to have a good behavior record and a bed at the same security level has to be available at the requested institution. Obviously, this will be easier for a medium security inmate than for someone in the supermax. I also have been impressed, given the horror stories I have read about visiting in some other states, by the generally polite and helpful demeanor of the CO's who handle visiting. I have never been physically searched--just wanded once when they determined that it was my shoes that set off the metal detector. Most of the CO's chat with visitors like they were real human beings, and not low-lifes because of our association with an inmate. I must admit, though, there have been a couple who were just gratuitously nasty. And nobody is going to make them behave differently.

Since you are open to the concept of discussing race as it relates to criminal justice, let me run a couple of ideas past you. This is such a sensitive topic that everybody gets defensive. But you seem to share my belief that there might be people in positions of authority who are perfectly happy for this state of affairs to continue--divide and conquer (us, that is) as it were.

For a while I was watching MSNBC's program Lockup to get a feel for what this prison stuff was all about. I remember a program on one of the big California prisons where they were talking about the race-based gangs. A CO stated that when someone came in there, they had to join a gang to survive. So, by definition, people who may not have been racists or gang members when they came into the institution may well be racists when they leave. If you and I enter prison and you have to join the Crips and I have to join the Aryan Nation to survive, and we live like that for, say, 10 years, never interacting with each other except with hostility and the occasional truce, what are the chances we will be able to treat each other like human beings when we get out? Even in the prison where my friend is (which is not in California, thank God), black and white inmates do not really interact. My friend is particularly good at one of the activities available for inmates to pass the time, and the black inmates will send a representative to ask him questions about it. There are no gangs at this prison, and the inmates are over 50, but there is still a rigid line between the races. Isn't this kind of counter-productive from a societal point of view? Why are we deliberately putting more and more people into a system which CREATES racism??? Oh yeah, divide and conquer. If the poor people think each other are the enemy, they'll never get together and throw us out of office.

And then there is the whole phone thing! In my state, phone privileges vary by institution, and the higher security prisons are more restrictive. But my friend is in a medium/minimum security prison, and we talk every night for a maximum of 15 minutes. He can actually place collect calls pretty much whenever he wants, but that, of course, is limited by the cost. The calls average about $2.00 to $2.50 each. So while it is money I would rather not have to spend, it is at least more manageable than those states where calls can cost $17 apiece. Poor families would still have difficulty coming up with that extra $70 or so a month.

I do believe that police and other agents of the criminal justice system target black people. I also believe that they target scruffy-looking white people from poor neighborhoods who drive old cars, are uneducated, and sometimes have prison tattoos. Once you've been in the system, they'll do everything they can to put you back there. But speaking of judges who think the system is wrong, there are both judges and (ex) police officers and federal drug agents in LEAP. And they even let their names be published!

I don't know what the solution is, but I have to believe that it is combination of education (how can we go about letting everybody know about this insanity and getting them to believe it is true?) and getting over this idea that anyone of the other race is the enemy as far as social policy is concerned? At the very least, we've got to keep talking to each other.

Posted by: disillusioned layman | Aug 6, 2007 10:38:03 AM

Since working inner-city Chicago in 1958, I said we should have MANDATORY day care for children ages 3 months to 4 years of age for EVERY child of EVERY family that is involved with the government through welfare, medicaid, prison, etc., so that the children would experience LOVE, LIMITS, READING, MUSIC, LIMITS, READING, MUSIC, LOVE!

With this kind of 8-hour-a -day environment, I believe our prison population would decline.

My foster son in prison wishes he had had such an experience in his early years at least 8 hours a day rather than drugs,little food, chaos, and anger 24/7. He really believes his life would have been different.

SO, whenever you talk with someone opposed to abortion, please ask him/her if she/he is involved in making such daycare possible for the least of these our children.

And, if your community does not have a day care for the families mentioned in the first paragraph, I hope you will get one started! Best if it is 24/7 to help the low-income working parents who have to work at night.

Posted by: Phyllis T. Albritton | Aug 7, 2007 10:26:57 PM

Ms. Albritton, thanks for adding the viewpoint of someone who is actually out there trying to help the people affected by the massive incarceration of poor Americans.

Students at the college with which I am associated started some years ago a program to work and assist families of autistic children. The student who was instrumental in getting this going has a younger sister who is autistic.

After having a good friend go to prison and experiencing the attitudes of others about my determination to remain his friend (as well as prison visiting, phone expenses, and other difficulties experienced by prisoners' families and friends), I have suggested that students might get involved in tutoring or some other forms of assistance for children of people who are in prison. It hasn't gone anywhere yet, but I think this idea could be useful if it could get started. Not only do children of prisoners sometimes have childhoods filled with poverty and drugs, but once a parent goes to prison the children are frequently treated as social outcasts who are tainted by their association with the incarcerated parent, in addition to the pain of losing their parent, being sent to foster care or relatives, and all the other problems they face. Perhaps having others reach out to them rather than just dismiss them as future prison fodder might be helpful.

Posted by: disillusioned layman | Aug 9, 2007 12:06:38 PM

Please note the change of address for the Loury article:

http://www.bostonreview.net/BR32.4/article_loury.php

Posted by: BostonReview | Aug 21, 2007 11:56:12 AM

Please note the change of address for the Loury article:

http://www.bostonreview.net/BR32.4/article_loury.php

Posted by: BostonReview | Aug 21, 2007 11:57:14 AM

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