December 6, 2010
NY Times editorial on California's prison overcrowding case
This morning's New York Times has this extended editorial headlined "The Crime of Punishment," which comments on last week's Supreme Court argument in the California prisons case. Here are excerpts:
In 2005, when a federal court took a snapshot of California’s prisons, one inmate was dying each week because the state failed to provide adequate health care. Adequate does not mean state-of-the-art, or even tolerable. It means care meeting “the minimal civilized measure of life’s necessities,” in the Supreme Court’s words, so inmates do not die from rampant staph infections or commit suicide at nearly twice the national average.
These and other horrors have been documented in California’s prisons for two decades, and last week they were before the Supreme Court in Schwarzenegger v. Plata. It is the most important case in years about prison conditions. The justices should uphold the lower court’s remedy for addressing the horrors....
The case will most likely be resolved by a vote of 5 to 4, with Justice Anthony Kennedy’s vote decisive. At the oral argument, he said that “at some point,” the court must say “overcrowding is the principal cause, as experts have testified, and it’s now time for a remedy.” After 20 years of litigation and 70 court orders, that point has come.
At the intense, sometimes testy argument, Justice Samuel Alito revealed the law-and-order thinking behind the California system. “If 40,000 prisoners are going to be released,” he said overstating the likely number, “you really believe that if you were to come back here two years after that you would be able to say they haven’t contributed to an increase in crime?” To Justice Alito, apparently, it was out of the realm of possibility that, rather than increasing crime, the state could actually decrease it by reducing the number of prison inmates.
Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.
America’s prison system is now studied largely because of its failure — the result of an expensive approach to criminal justice shaped by fear-driven ideology. California’s prisons embody this overwhelming failure.
December 5, 2010
Notable new article on the rights of children of the incarcerated
I just came across this new article available via SSRN titled "Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship." Here is the abstract:
This Article describes the vast population of children with incarcerated parents. The central argument reframes sentencing law and prison visitation policy through the lens of children’s rights, rather than the traditional frame of prisoners’ rights. It then suggests as a possible legal basis for children's right to a relationship with their convicted parents the First Amendment freedom of association and a due process liberty interest. The argument is developed through comparative analysis of current sentencing law and visitation policy in New York State and the federal system, as well as First Amendment doctrinal analysis. International law and practice illustrate that the status quo in the United States need not be the only approach.
The author of this notable article is also notable. The article is authored by Chesa Boudin, a 3L at Yale Law School and the son of the Weather Underground radical Kathy Boudin. Kathy Boudin served 20 years in New York State prison after she was convicted in 1984 of felony murder for her participation in an armed robbery that resulted in the killing of three people.
"A defendant must be sentenced based on who he is, not just who he was."
The title of this post is a line from the argument in this amicus brief from Families Against Mandatory Minimums filed in Pepper v. United States, the federal resentencing case to be argued before the Supreme Court tomorrow (basic background herefrom SCOTUSblog). I hope to provide some links to some previews of the Pepper case in a subsequent post, but I wanted to first highlight and encourage discussion about this simple (and arguably controversial?) idea about sentencing.
Pepper is so interesting because it is the first case in a long time that I can remember the Supreme Court addressing proof and procedure issues surrounding a resentencing. And the line quoted in this post's title assert that it is imperative that all relevant facts surrounding a defendant at sentencing must be considered at such a resentencing. For anyone with a utilitarian sentencing philosophy (like me), this assertion seems exactly right as an imperative. But I suspect that not all those who embrace a retributivist sentencing view would agree. Indeed, I could imagine some retributivist going so far as to assert that a defendant must only be sentenced based on who he was and what he did at the time of the crime, not based on what he does and who he may become thereafter.
In other words, I think Pepper may raise some deep punishment philosophy issues because it seems possible that the adoption of one particular theory of punishment (or belief that Congress adopted one particular punishment theory for these purposes) would be dispositive concerning how the case is to be resolved. Do others agree and/or see the core issue in Pepper similarly?
Japan also struggling with aging prison population
As detailed in this new AP article, which is headlined "Japanese prisons face swelling elderly population," Japan is dealing with a prison problem that is very common in many US states. Here is how the piece starts:
Handrails run down the middle of the hallway to help prisoners make their way from one end to the other. Adult diapers are neatly stacked in a corner. When an inmate chokes on his rice and coughs, a supervisor rushes over to rub his back.
Welcome to the world of old-age prisons. Japan's population is aging faster than anywhere else, and with that has come an even sharper rise in elderly inmates.
The number of Japanese prisoners aged 60 or older has doubled over the past decade to more than 10,000. That outpaces a 30 percent increase in the general population for that age group. The elderly now represent 16 percent of the nation's inmates.
Though Japan's crime rate remains relatively low, the spike in elderly crime is another sign of the social and economic strains on the once-confident country.
"Death penalty on trial: An examination of the flawed Texas capital punishment system is long overdue"
The title of this post is the headline of this new editorial from the Houston Chronicle. Here are excerpts from the start and end of thie editorial:
A challenge to the constitutionality of the death penalty as practiced in Texas unfolds in a hearing in state District Judge Kevin Fine's court tomorrow. It's a fitting venue, since Texas has been by far the leading practitioner of capital punishment since its reinstatement in the United States in the '70s, and for years Harris County was the leading source of convictions. Approximately a third of the 316 inmates currently awaiting execution come from here.
The case that prompted the hearing is that of 25-year-old John Edward Green, charged in a 2008 robbery-killing in southwest Houston. Nine months ago Judge Fine, one of a wave of Democratic jurists who broke the all-Republican hold on Harris County district courts two years ago, issued a controversial ruling that the Texas death penalty was unconstitutional because of procedural flaws. After an ensuing furor from county law enforcement officials, Judge Fine backtracked, rescinding his ruling but setting the stage for an in-depth examination of capital punishment practices in the Lone Star state....
According to Green's attorneys, "When the fortuities that lead to the exoneration of every wrongfully convicted and condemned person are taken into account, there is a very strong probability that Texas has executed 12 or more innocent people." Nationally, according to the Death Penalty Information Center, for every nine people executed, one person is exonerated after being sent to death row. The number of wrongly convicted defendants led former Supreme Court Justice Sandra Day O'Connor to conclude that "if statistics are any indication, the system may well be allowing some innocent defendants to be executed."
It's clear that the Texas capital punishment system is horribly flawed and carries an unacceptably high likelihood that innocent people have been and will be executed for crimes they did not commit. We look forward to the proceedings in Judge Fine's courtroom as a vital step in identifying the problems and crafting safeguards to prevent the ultimate miscarriage of justice.