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January 23, 2009

What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....

lots of other distinctive aspects of the modern American criminal justice system?  I ask this question because I keep thinking about these two sections of President Obama's Inaugural Address:

On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.  On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics.  We remain a young nation.  But in the words of Scripture, the time has come to set aside childish things.  The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness....

As for our common defense, we reject as false the choice between our safety and our ideals.  Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man -- a charter expanded by the blood of generations.  Those ideals still light the world, and we will not give them up for expedience sake. 

I strongly believe that the most disturbing aspects of modern criminal justice systems reflect choices by many in government to choose fear over hope and to readily give up "our ideals" concerning freedom and liberty because doing so seems expedient in light of "false promises" and "worn-out dogmas" of purported perils that threaten "our safety." 

Ironically, some of our ideals concerning freedom and liberty still light the world even though they have been given up at home.  No other country in the world incarcerates nearly as many people as does the US, and many nations in Western Europe take pride in their low imprisonment rates.  Many countries reject as inhumane the punishment of life without parole for any offender, while the US continues to condemn even juvenile offenders to never having a chance to live outside a cage.  Sadly, I could go on and on, but let me here just encourage readers to add more examples of criminal justice choices that seem to sacrifice our ideals in the name of safety.

Valuably, we have already seen President Obama's commitment to give meaning to his words through his executive orders that, as described in this article, will "close the Guantanamo Bay detention camp within a year, permanently shut the CIA's network of secret overseas prisons and end the agency's use of interrogation techniques that critics describe as torture."  But, now that the President and his Administration have showcased a commitment to our ideals in the face of foreign threats, I hope he will turn at least some attention toward what our ideals and "our better history" means for domestic crime and punishment.

As I have suggested before, President Obama could give effect and impact to his inspiring words about "out ideals" through a few clemency grants or an executive order calling for a review of the massive increase in the size and costs of the federal criminal caseload (which, as discussed here, was recently documented by the US Sentencing Commission).  A little action to back up his rhetoric on the home front would go a long way toward giving me hope that false promises,  worn-out dogmas and fear are among the childish things that the new President is truly prepared to put away.

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Doug, there was a 13 year juvenile killer in Oklahoma who killed a two year old. He was released. He wound up killing an 8 year old boy, got the death penalty, and unfortunately had the death penalty overturned for some BS penalty phase issue. How many 8 year old boys are you willing to sacrifice to allow 500 juvenile murderers to someday get out of prison? LWOP is there for a reason--it saves innocent lives. I'll turn the question around, what does it say about freedom when we loose violent criminals onto a peaceful society to have them pick victims for unspeakable violence? Just last night Reginald Perkins was executed. Perkins had a long and violent history before he committed the crime that got him the death penalty. He raped two 12 year old girls and served a scant 8 years for the crime. I would say that such cavalier treatment of a dangerous offender (which gets repeated often even now) says more about our morality than locking killers in a cage. And I would say that moral preening about vicious killers is a "childish thing". But you may be right to have some hope for Obama--after all, it's patently obvious that Obama has a good deal of sympathy for criminals. Anyone who euphemizes a six-on-one beating of a prostrate unconscious victim as a "schoolyard fight" or who adopts, dare I say, childish rhetoric about the "just us" system has that combination of naivete and self-righteousness that lends itself to considering kindness to criminals proof of one's moral superiority. Obama, though, likely has bigger fish to fry, he wants to prove his moral superiority by taking people's hard-earned money and spreading it around as if it were his. He's not likely to jeopardize that agenda to help a bunch of criminals. His help to criminals will come with his judicial appointments. Get ready for a bunch of Reinhardts, although without the intellectual firepower.

And Doug, don't be so sure about Obama and GTMO and secret prisons. He's going to have to figure out what to do if we catch a terrorist with actionable intelligence info. I suspect, like many Obama positions, this one comes with an expiration date.

Posted by: | Jan 23, 2009 10:24:44 AM

Your comment nicely shows how easy it is to embrace fear over hope and safety over our ideals. You say "LWOP is there for a reason--it saves innocent lives." Perhaps, but we could save even more lives if we gave every drunk driver an LWOP sentence. After all, drunk drivers kill over 10,000 innocent people EVERY year.

Stop with the silly political rhetoric and think a little harder about both the wisdom and implications of all your ranting (especially since there are lots of good arguments that "spreading money around" for better health care and safer infrastructure would save innocent lives). Yeesh, please save politicized silly talk for calls to Hannity.

Posted by: Douglas A. Berman | Jan 23, 2009 11:19:25 AM

Prof B,
Also, while the presidency is a great big bully pulpit, there isn't a whole lot the president can do directly about incarceration practices in the states.

I don't know that it's a unique government structure, but I suspect that our huge federal government coupled with states that are quite powerful in the police powers arena is part of what has lead us here, whether here is actually bad or not.

As for those DUIs, I have said before and will say again now, I would like to see execution as a possibility in all felony cases. The offender should either get a clean break with their past or be put down.

Posted by: Soronel Haetir | Jan 23, 2009 11:48:19 AM

In a nation with over 300 billion persons, it's very easy to locate a few heinous--but anecdotal--examples of perceived undue lenity. That however, is an inadequate response to the very real truth that we lock up too many people for too long, no matter what measuring stick is used. Unfortunately, the politics of fear is effective in enhancing the powers of our elected masters; a lesson that most assuredly is no anecdotal. At least the new guy is making the right noises, which is a dramatic break with the past.

Posted by: | Jan 23, 2009 12:02:29 PM

Doug, there isn't the political will to give drunk drivers LWOP, so it's a non-starter and has precious little relevance to the debate. We have miles to go in this area, and I agree that our response, as a society, isn't consistently tough like it should be. In any event, what "ideal" is it to loose vicious killers onto society? From my vantage point, it looks like moral preening instead of any ideal. The reality, which you studiously ignore, is that this kindness (or as you put it, ideal) comes with a very heavy price--murders of other people. Now it may be that is a price we are willing to bear, but I suspect that there is precious little analysis of the cost-benefits of such an approach. Instead, people puff about the American ideal or point to the enlightened Europeans (now there's a justice system we want to emulate--punishing people for free speech, letting vicious murdering terrorists go and punishing people for self-defense). The reality is that recidivist violent criminals commit a lot of violent crime. These violent crimes should have been prevented in many many cases. Now let's look at specifics. If we are going to release juvenile killers into society with some meaningful amount of time for them to live their lives (i.e., before they are in their sixties), that is going to get some people killed. What ratio is acceptable? The possibility of some kind of life outside for say 300 killers vs. 1 death? (And please don't argue that prison evaluation will keep the most dangerous ones incarcerated--you're talking about numbers, and in order to get numbers, you have to have some sort of mandatory system.) What's the acceptable collateral damage? Let's hear that before you accuse me of Hannity like rhetoric. And why, Doug, don't outrages like Perkins' lenient sentence (repeated over and over) get the kind of moral preening that, quelle horreur, the incarceration of a killer for his natural life gets.

Doug, people with your point of view (i.e., we're big bad meanies because we lock up so many people) are responsible for the Reginald Perkinses of this world. You may not be as off the deep end as others, but the bottom line is that we tried the "hug a criminal" approach, and it got us a lot of misery, and, what's worse, it was painfully obvious that it would do so. Surprise surprise, violent criminals tend to work more violence when released from prison. I suspect that the people that advocated such nonsense were more interested in feeling good about themselves than actually doing good.

I notice too that you lamely try to defend Obama because he wants a better health care system and wants to build infrastructure. Of course, you may forget that Obama unfavorably compared our infrastructure to that of Communist China during the campaign (but we are told, by honorable men, that Obama is a patriotic man). Of course, last time I checked, blizzards in the US don't shut down huge swathes of the country for almost a month and when we have earthquakes, the death toll is measured in, at most, dozens, rather than thousands. As for health care, socialized medicine is doing great up in Canada, isn't it? But Obama is for wealth distribution--he makes no bones about it. That's fine--but please don't try to dress that up as anything but the exercise of raw power.

I cannot help but laugh out loud at the accusation that I am putting exalting fear over hope. I would recharacterize it as putting experience over either naivete or moral preening.

Funny, though, I don't see you defending Obama's "just us" comment. Nor do I see you defending his characterization of the Jena Six assault, something which is related to criminal justice. So, Doug, while we're at it, is euphemizing a nasty six-on-one assault as a "schoolyard fight" part of the American ideal? Did his "just us" comment live up to American ideals?

You know, I just can't figure out Obama. He obviously cannot be a dumb guy, so you have to wonder if his commentary is just meant for consumption and that he's smarter than some of the things he says. But then I harken back to his enraptured acceptance of Jeremiah Wright's Audacity of Hope sermon, in which Wright said that "white man's greed runs a world in need". That such a racist and trite comment moved Obama really should give pause--of course, ideology has been known to blind even the smartest of people.

Posted by: | Jan 23, 2009 12:59:34 PM

"In a nation with over 300 billion persons, it's very easy to locate a few heinous--but anecdotal--examples of perceived undue lenity. That however, is an inadequate response to the very real truth that we lock up too many people for too long, no matter what measuring stick is used. Unfortunately, the politics of fear is effective in enhancing the powers of our elected masters; a lesson that most assuredly is no anecdotal. At least the new guy is making the right noises, which is a dramatic break with the past."

The crimes committed by violent criminals who served a much too short period of time in jail is far beyond the "anecdotal".

And is calling a vicious six-on-one racially motivated assault a "schoolyard fight" "making the right noises".

Posted by: | Jan 23, 2009 1:04:01 PM

I read and hear these "tough on crime" arguments all the time. I can't understand their reasoning. They can't understand the reasoning of people who wish for a better way of life. They were so in the majority until late in 2008. I think Obama's campaign, his conduct, dealing with both Hilary and McCain, began to influence the public. (I hope). There is a better way to be. I have stopped trying to understand where people are coming from when they express harsh ideas. I read one article by a neurologist which said people's brains are wired differently. I hope its not that, because, then there is no hope of the majority changing. Then, I consider Obama's landslide victory, and the great mood of all those people who watched the inauguration, and I hope that there are "better angels" deep down in even the large number of "tough on crime-ers".

Posted by: Donna | Jan 23, 2009 1:44:46 PM

Donna, do you realize that violent criminals tend to commit more violence if not locked up?

Posted by: | Jan 23, 2009 1:55:26 PM

Your comment nicely shows how easy it is to embrace fear over hope and safety over our ideals

I'm not the first commenter, but some baseline level of personal safety is one of our ideals. It just doesn't make it into songs. Your comments about "embrac[ing] fear," "worn-out dogmas" and "sacrific[ing] our ideals in the name of safety" are the same sort of empty political rhetoric you claim to deplore...

For what it's worth, if we could develop a 100% foolproof, error-proof breathalyzer test (and amend the Constitution), I'd be happy to see a law that allowed police officers to shoot people dead on the side of the road if they were driving a car and blew over .2. As long as well-off people like Kennedy offspring continue to drive drunk, however, DUI will continue to be one of the most costly and under-punished crimes out there.

Posted by: | Jan 23, 2009 2:17:09 PM

well, this is going swimmingly.

Posted by: Observer | Jan 23, 2009 5:14:12 PM

federalist wrote: "We have miles to go in this area, and I agree that our response, as a society, isn't consistently tough like it should be."

About as tough as they come in the world, though. Yet, remarkably, we have much higher violent crimes rates than much more lenient societies. Rational people draw conclusions--or at least rule out hypotheses--from plain facts like these. The irrational persist in their fantasies, or cruelty, as the case may be.

federalist wrote: "In any event, what "ideal" is it to loose vicious killers onto society?"

Hey, one of the little piggies wants his straw back. Besides that, most killers aren't all that vicious--orders of magnitude less vicious than you, in fact. Most killers are simply people who have been systematically deprived of material resources and severely damaged by the effect of the political choices you have consciously made (many with severe mental illnesses that had been left to fester untreated as a direct result of your political choice to deprive them of health care), to the point that they committed egregious acts that they immediately regretted. You, on the other hand, condemn millions of innocent people to die by your political acts and then demand the blood of your victims to boot.

federalist wrote: "The reality, which you studiously ignore, is that this kindness (or as you put it, ideal) comes with a very heavy price--murders of other people."

No, you condemn people to murder through your conscious political choices to deprive millions of people of basic stability in their lives. This choice causes murder, and you should own up to it. Your refusal to be held accountable for your own actions is clinically sociopathic (as is, in fact, your entire worldview). It is affirmatively harmful to our society and culture.

I'm sick of the ideological notion that only poor, damaged people should be held accountable for their anti-social conduct when your entire ideology is anti-social. It wreaks all kinds of havoc on people's lives (including causing thousands of innocent people to be murdered every year), and yet, despite this immense damage, you refuse to accept any accountability for the choices you have made, all the while demanding the blood of the poor be spilt, as if in sacrifice to some vengeful god to atone for your sins.

federalist wrote: "Now it may be that is a price we are willing to bear, but I suspect that there is precious little analysis of the cost-benefits of such an approach. Instead, people puff about the American ideal or point to the enlightened Europeans (now there's a justice system we want to emulate--punishing people for free speech, letting vicious murdering terrorists go and punishing people for self-defense)."

And all that with lower homicide rates. How foolish of them to use their government to provide stability, equality, and basic human rights like health care and housing to themselves in exchange for murder rates three, four, five times lower. Such a policy is only sane, of course, if you actually care about life and want to try to preserve and protect it, as opposed to destroy it. You don't. You crave blood.

Posted by: DK | Jan 23, 2009 11:03:45 PM

Dear Professor B:

I am the mother of a wrongfully convicted father of five, incarcerated for drug "conspiracy" with virtually no evidence. My wish is that you would send your thoughtful and well-reasoned article to the President's Office of Public Liaison, and perhaps begin a dialogue. You are correct, the President seems to be applying his ideals to Guantanamo, without realizing and understanding that this problem is also prevalent in the United States federal (and state) prison systems, and existed long before "Gitmo." The long, unfair sentences are only part of the problem, the biggest problem is there are no safeguards to insure innocent persons will not be convicted based only on the lies of snitches who are pursuing leniency for their own crimes and in the case of federal courts (and in my son's case) they can be convicted with no co-conspirators, no co-defendants, no physical evidence, and the snitch nor any witnesses need not come to testify, because a confession, undocumented and uncorroborated, only alleged by DEA Agents unable to produce rough notes, will suffice to send an innocent man to prison for 10 years to life.

Posted by: Emma Young | Jan 24, 2009 9:08:55 AM

I forgot to add, there was also no surveillance and the only transaction charged "in furtherance of the conspiracy" was a 2 kilo delivery, which was also charged as count 2 of the indictment (distribution) - and for which he was found not guilty because he had an airtight alibi for his inability to be 12 miles away from home delivering drugs on the date and time the snitch stated (who by the way gave 5 contradictory proffers and finally admitted he lied). Our justice system is not set up to provide justice.

Posted by: Emma Young | Jan 24, 2009 9:17:57 AM

"You crave blood."

Yes, I crave blood. More. More. MORE. Give me bloooooood! I am the southern conservative vampire. I drink blood like mint juleps and an eat souls like collard greens. No cape for me, I wear a panama hat and cowboy boots. Sooooouuuuuuuuuiiieee.

Posted by: | Jan 24, 2009 2:04:29 PM

I am referring to Emma Young's posts above. I am in very similar circumstances, I am poor, my son accused, and convicted with no evidence. The prosecutor used her power to stack so many charges, and the small town newspaper tried him themselves. The system is broken! My son was convicted to 24 years. He is mentally ill, has diabetes and won't live that long in prison. He was the only parent of his son, so I am now raising that boy, sharing my tiny income. I come on here every day to find out what direction the climate of the judicial system is going. Some posters ridicule me, but how could I care about a small ignorance like that, when I lost my son to injustice? Mr. Obama has a lot to do. I hope he can find time to do something about the injustice running rampant in the justice system.

Posted by: Donna | Jan 24, 2009 3:16:09 PM

DK's post says it all nicely.

Posted by: Donna | Jan 24, 2009 3:18:52 PM

"For what it's worth, if we could develop a 100% foolproof, error-proof breathalyzer test (and amend the Constitution), I'd be happy to see a law that allowed police officers to shoot people dead on the side of the road if they were driving a car and blew over .2."

And the sad part that just shows the sickness of humanity and the reality of what our education system teaches is that this person is probably a law school graduate.

Posted by: John | Jan 24, 2009 5:00:41 PM

"You, on the other hand, condemn millions of innocent people to die by your political acts and then demand the blood of your victims to boot."


Wow. All I can say is wow.

Posted by: | Jan 24, 2009 11:39:58 PM

One other thing I will add to this thread, an American ideal that has so far been missing from the discussion: personal responsibility. And that is very compatible with high incarceration rates.

Posted by: Soronel Haetir | Jan 24, 2009 11:52:42 PM

I agree with Soronel Haetir that "personal responsibility" has a lot to do with high incarceration rates.

Prosecutors should be more personally responsible for insuring that they are advancing the cause of justice by checking their facts, not rushing to judgment which results in having to resort to lies and distortions in order to "win" convictions.
Judges should be more personally responsible to make sure their personal prejudices and assumptions of guilt don't influence their rulings, such as refusal to allow certain exculpatory witnesses, refusal to give instructions that might be clarifying for the jury, allowing damaging hearsay evidence for alleged "limited purposes", sentencing on acquitted or uncharged conduct to insure longer sentences;
the Appellate judges should assume personal responsibility, adhering to their own established rulings based on case law, as opposed to finding creative and crafty ways to deny Constitutional rights;
DEA Agents and police officers should be personally responsible for telling the truth, even if it means not obtaining probable cause, and they should also be personally responsible for not making up lies and putting their own made up stories into the mouths of defendants; they should be honest enough not to manufacture crimes and trap others into participation in their crimes in order to boost their arrest records, and each individual Senator and Representative should be responsible to insure the laws they make are not laws that ensure the conviction and sentencing of anyone, guilty or innocent, who becomes trapped in the justice system -- laws like not needing any overt act to prove conspiracy, or allowing prosecutions to be brought on the word of a criminal seeking leniency with no check and balances as to whether they are lying or telling the truth; laws that allow jailhouse snitches to memorize names and facts about individuals they don't know and then come to trial and accuse them; the Supreme Court justices should be personally responsible for refusing to hear cases that could prove a person's innocence because their's is a "court of law and not a court of justice." And defense attorneys should be responsible for understanding their job is to defend a person who is assumed innocent, and their job is not to kiss up to prosecutors in hopes of getting future favors.

Posted by: Emma Young | Jan 25, 2009 12:16:21 PM

"One other thing I will add to this thread, an American ideal that has so far been missing from the discussion: personal responsibility. And that is very compatible with high incarceration rates."

I'll take personal responsibility from breaking the law when I get to have personal authority to make the laws.

Posted by: Daniel | Jan 25, 2009 1:48:54 PM

A wise man once said, "It is better to let a guilty man go free than to send an innocent man to prison!"

Posted by: JB | Feb 9, 2010 5:38:20 PM

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