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September 7, 2008

Important (though incomplete) op-ed on mass incarceration and mercy

Professor Carol Steiker has this interesting column in the Sunday Washington Post, headlined "Passing the Buck on Mercy."  The piece begins by discussing the debate over the sentencing of long-time fugitive Susan LeFevre (background here), and then turns to making broader points about mass incarceration and mercy.  Here are some excerpts:

Sitting in her cell in Plymouth, Mich., LeFevre is one of 2 million Americans behind bars. Many of them, like LeFevre, are nonviolent drug offenders.  The staggering number of American prisoners has made the United States the world's leading incarcerator; this nation locks up a greater number of offenders for longer periods than any other nation. In 1960, approximately 330,000 people were behind bars in the United States.  Today the number is 2.3 million.  Moreover, largely because of the "war on drugs," the increase in women's incarceration in recent years has far outstripped the increase in men's, devastating many families and communities.

How did we scale the soaring peaks of mass incarceration?  The decline of mercy has played a leading role.  With the noble intent of bringing rationality and order to what had often been a chaotic and even discriminatory system of criminal justice, reformers at every stage of the justice system have sought to limit the power of discretionary actors to say no to punitive policies.

Consider: Police departments have instituted mandatory arrest and "zero tolerance" policies that have swept up many low-level offenders.  Prosecutors' offices have given instructions, such as those issued by a series of Republican attorneys general, to charge only the most serious provable offenses, no matter what the circumstances.  Juries have convicted defendants on charges without any inkling of the sentencing consequences.  The ability of sentencing judges to respond to cases on their individual merits has been sharply curtailed or destroyed by sentencing guidelines and mandatory minimum sentences. And the granting of executive clemency has radically declined, not just in the Bush administration but also in governors' offices around the country....

An exit strategy from this upward spiral of incarceration lies in revitalizing the exercise of mercy.  Yes, mercy carries the risk of arbitrariness and discrimination.  Soccer moms such as LeFevre may seem to be more appealing defendants than many others who have committed nonviolent crimes.  But mass incarceration has had an enormous impact on poor and minority communities.  Only by reconsidering individual cases and questioning the necessity and desirability of punishment can we turn back from the prison state that we have become.

Our Founding Fathers understood the importance of checks and balances, but no one is checking or balancing the decisions that are causing our prisons to overflow.  By reinvigorating the veto power of actors all along the justice system, we may save individuals from unnecessarily destroyed lives.  We may save money in these economically trying times.  But most important, we may save ourselves -- by preserving the value of mercy.

The remarkable LeFevre provides an effective setting for considering the place of mercy in our criminal justice system.  But I think mercy and other concepts can only be an effective theme for reforming punitive laws and policies if effectively linked to American values.  Professor Steiker does this a bit in her final paragraph, but the link between checks and balances and acts of mercy feels a bit strained.

Of course, what the Framers were clearly trying to promote and safeguard through check and balances was the "blessings of liberty" (to use words from the Constitution's preamble) through the creation of a government that would help secure citizen's rights to "life, liberty, and the pursuit of happiness" (to use words from the Declaration of Independence's preamble).  In may view, the problem with mass incarceration and punitive policy lies not so much in the diminished value of mercy, but more fundamentally to the diminished commitment to human liberty within the United States.

But what is really missing in Professor Steiker's discussion is a failure to call national politicians to account for mass incarceration and continued acceptance of expensive punitive policies.  Especially with this piece appearing in the Washington Post, I would have like a few sentences noting and criticizing the failure of either presidential candidate to address these issues.  Indeed, linking this political point to the Framers' concerns, I keep hoping someone would ask the candidates whether they think the Framers would be proud to know that the United States is now the world's leader in incarceration rates. 

Some related posts:

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The source of the world prison figures is "World Prison Population List (fourth edition)" complied by Ray Walmsley.

http://www.homeoffice.gov.uk/rds/pdfs2/r188.pdf

Walmsley is the Research Director of World Prison Brief Online

www.worldprisonstudies.org

It takes a lot of work to compile world wide prison data and a number of countries will not provide any data and others only provide the number sentenced to prison (China for example). Many counties do not provide jail populations. Another source of confusion is that for a federal correction system prison and jail populations may be combined. Some countries incarcerate very large numbers of persons without charging them. Rwanda with a population of 7.2 million for example is holding over 100,000 persons on suspicion of genocide. We think that China holds an unknown number of persons without charging them and the United States also holds (what we hope is a small number) persons without charging them.

Walmsley has extensively footnoted his compilation and does not include uncharged persons in computing incarceration rates. His results are frequently misquoted without attribution (Prof. Steiker is a recent example).

Posted by: John Neff | Sep 7, 2008 7:25:12 AM

I'm not sure that proud is the right word. I think foolish is much more apt, they would wonder why we bother incarcerating burglers, robbers, rapists and murderers at all. I believe they would also think our immigration detention policies foolish in that we don't either make the choice to welcome people or make a more vigorous effort to defend the border.

As for drugs, I think the federal war on drugs would worry them, as much as the overall expansion of the federal government, but that similar state efforts wouldn't. And in that arena a few weeks in the stocks or other corporal punishment would be considered much more appropriate than our mass detention system.

So blame it all on a growing squeamishness.

Posted by: Soronel Haetir | Sep 7, 2008 11:30:07 AM

Turn on the nightly local news and you'll see 29 minutes of crime stories, 30 seconds of weather, and 30 seconds of sports. Are criminals endangering your children at their schools? Tune in tonight at 10 to find out. Are your children being threatened by pedophiles at the mall? Tune in tonight at 10 for a special report. It's blackmail. "You're children are going to die, but you can tune in and watch our programming to find out how you can save them." Advertising based on blackmail should be prosecuted as blackmail. The First Amendment should not apply to commercial speech, and in many ways it already doesn't - commercial speech does not receive full First Amendment protection. Fraudulent commercial speech receives no protection. Blackmail-based commercial speech should not, either. All commercials are based on implicit threats, if only threatening our self-esteem. "You won't get laid unless you buy use our deodorant, drink our beer, drive our car, eat our breakfast cereal..." that should receive NO first Amendment protection and should be prosecuted as blackmail.

But it's the irrational fear of crime that's been instilled by such news broadcasts which causes us to be in constant fear of crime and to have no qualms about locking up everyone who so much as breathes in an incriminating fashion. It's never going to end, and the harm to the American way of life has already been done - it's irreversible. Our country is doomed. I give it 8-10 more years, max, before our whole country collapses and we're forced to immigrate (back) to Europe. Within 50 years, America will be a religion wasteland, indistinguishable from the middle east except for two things: (1) we'll use horses instead of camels, and (2) we'll have infinitely more prisons than the middle east. But we'll still have mosques everywhere, our country will be half Muslim and half Christian (all the jews will have fled), and there will be constant Christian-Muslim violence as mosques and churches are burned to the ground, followed by random extrajudicial hangings as retribution. All the crops will be lost, and America will be a dustbowl - a sandy wasteland like the deserts of the Middle East. Christians and Muslims alike will wear traditional "towelhead" garb to keep cool and dry, except Christians will wear garb of a different color than that of Muslims, along with big crosses on their necks and the necks of their horses.

Our country has passed the point of no return, America is 100% absolutely, no way to fix it, doomed. A few short decades we'll have gone from a superpower to a third world country - and all because of religion and commercial speech that should have been banned decades ago.

If it were not for such news stories, the drug war would have been a laughing stock from the outset, and Harry Anslinger would have spent the remainder of his life locked up in prison for perjuring himself at his congressional testimony regarding the dangers of marijuana and other drugs. Harry Anslinger was the biggest, most horrendous, most dangerous criminal of the 20th century. I wish I believed in Hell, because there would be a special place there for him. Nobody deserves to be burnd alive for all eternity moreso than Harry J. Anslinger. He's second only to Hitler in terms of the most evil, most damaging criminals of the 20th century - nobody has ruined more lives than Harry J. Anslinger other than Hitler. And at least Hitler was open about his crimes and hostilities. Anslinger disguised them through perjury. However, I also blame the Congress of to whom Anslinger testified - they asked him leading questions and basically demanded he commit perjury to satisfy their desired angenda.

Nonetheless, if Anslinger were alive today, he should be tried for crimes against humanity. "Congress wanted me to lie" is nothing more than a Nuremburg defense - Befehl ist Befehl.

So, combine war criminal Anslinger with the local news and you get irrational fears of all crime, all of which people believe stems from "drugs."

Keep your passport up to date, it won't be too much longer before all good, intelligent Americans will be forced to flee to Canada or the UK or some other safe haven.

Posted by: bruce | Sep 7, 2008 11:55:14 AM

I'm a criminal attorney in Houston and our county jail is busting at the seams due to the incredible number of non-violent citizens accused of possession of marijuana (a Class B misdemeanor) who are locked up and can't post bond. The State has authorized the use of citations for these minor drug cases in which an alleged offender would be issued a citation with a notice to appear. Should he fail to appear, a warrant would be issued. Harris County has said they will not do business that way.

Posted by: Paul B. Kennedy | Sep 7, 2008 1:06:51 PM

Professor Berman deserves kudos

Prof, Your post is one of the best ones all year. It makes me wonder why all the other law professor blogs are a bunch of slackers.

Obviously, sentencing and criminal justice can, should, and will be “reformed” but, as you point out, this must be done in the context of an actual legal discussion and the constitution.

Consider this.

1. Most law professor blogs wait days or weeks before reporting on caselaw. You usually have it same day. Practitioners need to know about caselaw instantly. Somewhere along the line professors stopped holding themselves up to the ethical standards of the professor.

2. Most law professor blogs do not even bother to comment critically on commentary. They usually just provide a link to something and say it is “interesting.” Usually they are too chickens**t to say that a professor got it all wrong, or made several unfounded assumptions.

3. Finally, most of the law professor blogs are not that receptive to commentary. You allow comments. Sure, sometimes they get out of hand, but this is probably a better situation than say, CrimProfBlog, which legitimizes the least rigorous examples of scholarship and refuses to even acknowledge comments that point out legal errors.

Posted by: S.cotus | Sep 7, 2008 3:07:44 PM

It's always interesting to me how a group of people can rally around a common cause despite the fact that their ultimate goals are different. I have very little interest in the "blessings of liberty" or "mercy" as a value. For myself, I do not see the "risk of arbitrariness" as any risk at all, but rather arbitrariness just is the central value. Individual variation, what we like to call judicial discretion, is a value in and of itself. This is not so only because without it the concept of individuality is meaningless, it's because it rejects any notion of a foreclosed world. The more spontaneity there is in the world, including the legal world, the better off we are as a society. Of course, I don't believe in a totally chaotic world. Like all things, there is a balance between chaos and order. It is just my fundamental perspective that the pendulum has swung too far towards the side of order. Whether increasing the amount of randomness in the system promotes such abstract causes as "mercy" and "liberty" I know not; it may actually do the reverse. Such questions are uninteresting to me and I place no hope in either direction.

Posted by: Daniel | Sep 7, 2008 3:45:34 PM

Daniel, I hope you never find yourself accused of a crime you did not commit. You might see those values in which you have "very little interest" and the arbitrariness which you consider "no risk at all" in a whole new light. However, that is not the point of my comment.

It was interesting to read this article and Professor Berman's comments about it after having lunch with my 92-year-old aunt last week. She is a political science PhD who is realistic about things political but has always retained a strong sense of idealism regarding the Constitution and what she feels our country should stand for. She deeply loves this country. She said she recently became fed up with a group of friends who were grousing about politics and told them, "Politics is the process of democracy. Without politics, you have no democracy." When I was an undergraduate in the 60's and active in student protests, she had no problem with my political views, but she insisted I become as knowledgeable as possible about the functioning and history of the government with which I was angry.

We spent considerable time at lunch talking about the legal system and the experiences of a friend who recently spent several years in prison. There was no evidence that he had committed the crime--or even that a crime had been committed--except one person's uncorroborated say-so. We simply couldn't prove he hadn't done it. The prosecutor's winning argument had been that the woman's story was so strange that she couldn't have made it up. Of course, she produced plenty of tears on cue. Aunt Martha was incensed. What about proof beyond a reasonable doubt? We talked about mass incarceration, the length of sentences, the sex offender hysteria, and the stupidity of releasing huge numbers of people from prison with no way to find jobs or places to live and then wondering why they wind up back in prison. Aunt Martha remembered the concept of people who left prison having paid for their crimes. She said that we have become an incredibly vindictive people who have no concept of mercy or forgiveness any more.

So I told her about sentencing based on acquitted and uncharged conduct. Her jaw dropped. She had never heard of such a thing. She expressed disbelief. I told her about the case in which the juror wrote to the judge asking why the jury had spent all that time if their decision didn't mean anything. Her voice shaking slightly, she asked that I find her some articles so she could read about it. (Thanks to this blog, I was able to find her several.) Then tears appeared in her eyes, and she said, "This isn't the way my country behaves."

Posted by: disillusioned layman | Sep 7, 2008 9:08:32 PM

You might like the seal of Northampton County, Pennsylvania. That's what the guards at the Northanpton County Jail wear on their uniforms.

http://www.northamptoncounty.org/northampton/lib/northampton/depts/corrections/hist.pdf

You'll likely never see the words "mercy" and "justice" elsewhere in a jail.

Posted by: anonymous | Sep 10, 2008 4:09:13 PM

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