« Interesting new numbers in latest Gallup poll of death penalty public opinions | Main | Additional written testimony submitted at House Booker hearing »

October 13, 2011

"Punishing Pregnancy: Race, Incarceration and the Shackling of Pregnant Prisoners"

The title of this post is the title of this new article available via SSRN by Priscilla Ocen.  Here is the abstract:

The shackling of pregnant women prisoners during labor and childbirth is endemic within women’s penal institutions in the United States.  This article interrogates the factors that account for the pervasiveness of this practice and suggests doctrinal innovations that may be leveraged to prevent its continuation.  At a general level, it asserts that we cannot understand the persistence of shackling without understanding how historical constructions of race and gender operate structurally to both motivate and mask its use.

More specifically, this article contends that the shackling of pregnant prisoners during labor and childbirth can best be understood through an analysis that centers Black women and foregrounds the historical devaluation, regulation and punishment of Black women’s exercise of reproductive capacity in the context of slavery, convict leasing and chain gangs in the South.  The regulation and punishment of Black women within these oppressive systems reinforced and reproduced stereotypes of Black women as deviant and dangerous, and these images in turn animate harsh practices against all women prisoners.

Moreover, this article asserts that current jurisprudence concerning the Eighth Amendment, which is the primary constitutional vehicle for challenging conditions of confinement, is insufficient to combat this problem at the structural level.  This is so because of its focus on the subjective intentions of prison officials at the individual level and because of its omission of any consideration of how race underlies institutional practices.  Instead, this article suggests an expanded reading of the Eighth Amendment and the 'evolving standards of decency' language that undergirds the 'cruel and unusual punishments' clause.  This expanded reading, which this article refers to as the 'antisubordination approach,' draws upon Justice Harlan’s oft-cited dissent in Plessy v. Ferguson and his underappreciated reading of the Thirteenth Amendment therein to argue that conditions of confinement which result from or are related to repudiated mechanisms of racial domination should be deemed cruel and unusual punishment.

October 13, 2011 at 09:47 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20153924576a3970b

Listed below are links to weblogs that reference "Punishing Pregnancy: Race, Incarceration and the Shackling of Pregnant Prisoners":

Comments

This article (or abstract) is representative of everything that is wrong with so-called academia. Someone, who has zero experience in how or why prisons have certain policies is attempting to project misogynist and racist motivations onto "the man." A lawyer writing such an article is like a chemist writing about neutering a dog. Both are in the science field but that is where the commonalities stop.

It's simple, really. It is far easier to escape custody on a medical trip than when sitting in Sing Sing or Bedford Hills. Men, women, white, black, purple, and pink are all shackeled on such trips. It is security 101. The only question is which premise is sillier, that the practice comes from misogyny, racism, or both.

Posted by: TarlsQtr | Oct 13, 2011 10:35:36 AM

TarlsQtr --

C'mon, man, what would we do without our daily dose from the Amerika Stinks contingent?

You just don't get it. It's not just that pregnant prisoners shouldn't be shackled. It's that NO prisoners should be. As a matter of fact, they shouldn't be prisoners at all. They're all innocent, and were forced into pleading guilty, not because they did, ya know, anything wrong -- NOOOOOOO -- but because The Very Bad Prosecutor threatened a 12,000 year mandatory minimum.

You gotta love it TQ, you really do. Every now and again some liberal lets loose with what these characters really think, but are normally too PR shrewd to say out loud.

Posted by: Bill Otis | Oct 13, 2011 10:59:46 AM

Gee Bill and TQ, Texas Governor Rick Perry signed bipartisan legislation in 2009 banning shackling of pregnant inmates in most cases - a bill essentially similar to the one Democratic Gov. Jerry Brown ("Goveror Moonbeam" himself) recently vetoed in California.

So I guess Rick Perry's goal was to "project misogynist and racist motivations onto 'the man,'" he was listening to advisers with "zero experience in how or why prisons have certain policies," and the Tea-Party darling is now part of the "Amerika Stinks contingent" who believes inmates are "all innocent, and were forced into pleading guilty" ... right?

I suppose this also makes you two "Jerry Brown Republicans."

Posted by: Gritsforbreakfast | Oct 13, 2011 11:20:25 AM

I don't recall endorsing Governor Perry. Where was that?

As for being a "Jerry Brown Republican," I have always been happy to join forces with the other side of the aisle when they were working toward the right goals, for example, Ted Kennedy in his co-sponsorship of the Sentencing Reform Act of 1984. I guess that makes me a "Ted Kennedy Republican."

Posted by: Bill Otis | Oct 13, 2011 11:34:15 AM

Of course you didn't endorse Gov. Perry, you just said he's part of the "Amerika Stinks contingent."

Posted by: Gritsforbreakfast | Oct 13, 2011 11:40:22 AM

Grits,

It is called "reading comprehension" and perhaps you should try it.

What I commented on (and Bill replied to) was someone who has virtually no experience in prison policy projecting racist and misogynist motivations for the policy. That is an absurd allegation and yes, it does reek of the "Amerika stinks" crowd. I sincerely doubt that Perry signed the bill on the basis of shackeling being a leftover from slavery or of women needing to be barefoot and pregnant. If he did, please show your evidence. If not, your point, like most from you, is irrelevant.

Now, if you want to get into a thoughtful, reasonable, and adult discussion on whether it is good policy, fine, I am game. Judging by your above post and countless others, my only reservation is your ability to do so.

Posted by: TarlsQtr | Oct 13, 2011 11:43:43 AM

I once saw a small woman about 5' 100 lbs., pre trial being escorted from the jail to the court house by five large armed law enforcement officers. She was in an orange jump suit, shackled wrists to waist, and ankle to ankle.

Images like this and the vision of a pregnant woman in labor being heavily guarded and chained is what makes people believe that perhaps there is too much money in law enforcement being spent on unnecessary personnel.

Posted by: beth | Oct 13, 2011 11:46:31 AM

TQ, Y'all just issued a litany of baseless smears attributing views no one ever uttered to those you disagree with on this topic. The idea that your goal was to debate "good policy" is belied by the inflammatory rhetoric in the first two comments on this string, which for both of you is pretty much business as usual.

Posted by: Gritsforbreakfast | Oct 13, 2011 11:47:44 AM

Grits stated: "TQ, Y'all just issued a litany of baseless smears attributing views no one ever uttered to those you disagree with on this topic. The idea that your goal was to debate "good policy" is belied by the inflammatory rhetoric in the first two comments on this string, which for both of you is pretty much business as usual."

Grits, Please R-E-A-D.

My post centered on someone with no knowledge in such matters projecting racist and sexist motivations for the shackeling policy rather than security. It did not tackle the soundness of the policy other than to indicate that it is Security 101. An overwhelming majority of jurisdictions shackle all prisoners, which is evidence of this fact.

Now, it is not her antagonism towards the practice that makes her part of the "Amerika stinks" crowd or one who likely wants a mass exodus from prisons, it is her willingness to paint the motivation for the practice as a remnant of slavery and sexism rather than good security.

Do you finally get the difference?

Thus, your point is irrelevant. You (or Perry) may be against the practice and stay out of the "Amerika stinks" crowd. It is calling the practice sexist and racist that makes it a ticket on the last train to Kooksville. To my knoweldge, Perry has made no statements.

Posted by: TarlsQtr | Oct 13, 2011 12:06:17 PM

Beth,

What you fail to understand is that 5' 100 pound women often have 6'5" 300 pound boyfriends with friends and weapons. Things like this happen more than you know.

I am reminded of a recent case here in Kentucky where a "5' 100 pound" woman standing with at least two deputies next to her jumped the bench and clocked the female judge. Now, imagine if she had a shank.

Posted by: TarlsQtr | Oct 13, 2011 12:15:01 PM

TarlsQtr --

Grits just says whatever he wants. His absolute specialty, matched by no other commenter on this site, is to accuse his opponent of doing what HE does in spades.

Example:

Grits today: "Y'all just issued a litany of baseless smears attributing views no one ever uttered to those you disagree with on this topic."

Grits before today: "Bill, Dudley and SC are just bloodthirsty, believing that all killing by the state is inherently, morally good in all instances while the application of common sense utilitarianism is for pussies."

Notice that what Grits accuses you and me of doing -- "a litany of baseless smears attributing views no one ever uttered to those you disagree with" -- is EXACTLY AND PRECISELY what he did when he went after Dudley Sharp, SC and me with his preposterous "inherently, morally good in all instances" smear.

Stand-up guy that he is, he has repeatedly refused to withdraw this lie, and just keeps on keepin' on.

Posted by: Bill Otis | Oct 13, 2011 12:28:14 PM

TQ, I did read what you wrote, which for example is how I know that you don't know how to even spell the word "shackling," much less have any idea about best practices on the topic. You read an abstract to an article making arguments based on historical analysis and 8th amendment jurisprudence, didn't bother to read it, then made all sorts of assumptions about the author that represented nothing but a knee-jerk reaction. Bill's commentary took it even further, but one notices you don't distance yourself from it but in fact embraced his "Amerika Stinks" line.

As for your comments to Beth, very few pregnant women in labor are making appearances in court, much less jumping over the bench to shank a judge.

You can keep blathering on if you like but you and Bill have now filled my red-herring quotient for the day, so I'll just leave you to it.

Posted by: Gritsforbreakfast | Oct 13, 2011 12:38:46 PM

Bill, I did retract that, comment, which if I recall was made years ago but which obviously still sticks in your craw: I admitted based on your recent comments that you oppose war crimes if they occurred more than 40 years ago or were committed by Communist states. I've never seen you oppose state killing in any other context, but if you'll point me to your writings where you've done so I'd be happy to extend that caveat even further.

Posted by: Gritsforbreakfast | Oct 13, 2011 12:45:32 PM

Now come on Bill.

You do not expect him to play by the same rules that you are obligated to, do you?

And I thought it was the liberals that were supposed to be naive "babes in the woods."

In my short time here, I have recognized Grits as a version of the old arcade game, "Whack 'a Mole." He comes on a thread, gets unveiled as the unserious person he is, and disappears back down the hole. His head then pops back up in the next thread like nothing happened...

Posted by: TarlsQtr | Oct 13, 2011 12:46:31 PM

Grits, when confronted with his own words containing "a litany of baseless smears attributing views no one ever uttered to those [he] disagrees with," decides right quick to announce he's taking a powder.

Far out.

Posted by: Bill Otis | Oct 13, 2011 12:49:35 PM

Bill, I reacted (again, for the Nth time) to your complaint about a years ago blog comment you can't seem to get over (here in Texas there's a saying, "only a hit dog hollers"), but you bring it up so often I feel no compunction to do so every time I comment here, especially when the only reason you keep bringing it up is to divert attention from the actual subject of Doug's posts. And to both you and TQ: Volume of comments, snideness and shrillness don't make you right, just boring. And at this point, unless you have something to say about the actual topic of the post, I'm bored.

Posted by: Gritsforbreakfast | Oct 13, 2011 12:58:44 PM

Grits --

I guess you decided taking a powder wasn't such a good idea after all.

"Bill, I did retract that, comment, which if I recall was made years ago but which obviously still sticks in your craw."

The problem isn't where it's sticking. The problem is that it's false, and that you had no basis for thinking it was true the day you made it.

Nor have you ever retracted it. When backed into a corner, you said that it might have been hyperbole, but not by much. (That's not an exact quotation -- I can't find your post -- but it's very close).

That is not a retraction and, while we're at it, it ALSO isn't true.

Your statement was not hypeobole and it was not just a little off. It was a point-blank lie, and a smear. No sane, civilized person could hold the belief you attributed to me. If you think I'm insane or uncivilized, you go right ahead. I am proud to have represented the United States -- a great and benevolent country no matter what you believe -- in federal court for many years and under administrations of both parties.

Did you? Have you ever once been employed in the service of your country? Have you ever spoken up for it? From what I see on your blog, it's a steady diet of none-too-pleasant criticism and dark questioning of the motives of those who disagree. Just the other day you said here that the reason Obama has not been more forthcoming with pardons is that he's a coward (your exact word). Does it not occur to you that he might view them as unwarranted on the merits? Is everyone -- Kent, Tarlsqtr, federalist, me, you name it -- a sleaze? Just because they're not in your very leftish corner?

Posted by: Bill Otis | Oct 13, 2011 1:19:04 PM

Sorry TarlsQtr, I just don't think there's enough government money available to protect all public servants from random acts of violence.

Posted by: beth | Oct 13, 2011 1:21:05 PM

Grits: "TQ, I did read what you wrote,..."

Apparently not or you would have refrained from entering into a diatribe regarding how Perry must be in the "Amerika Stinks" crowd. The distinction between being against the policy and thinking the policy is derived from racism/sexism is obvious. Of course, reading comprehension limitations are another possibility. I'll let you decide.

Grits stated:"...which for example is how I know that you don't know how to even spell the word "shackling," much less have any idea about best practices on the topic."

Ah, yes. Ridiculing typos? Do you really intend to set the standard for adult discussion so low?

As far as my knowledge regarding best practices, I will put my credentials up against an internet blogger any day. Of course you are welcome to prove me wrong.

You stated: "You read an abstract to an article making arguments based on historical analysis and 8th amendment jurisprudence, didn't bother to read it, then made all sorts of assumptions about the author that represented nothing but a knee-jerk reaction."

And you have read the entire piece of research?

Apparently, you have never written a piece of published research (or even an APA paper for school)before. Abstracts are written by the author to summarize the research findings without someone having to read the entire work. I used the abstract in the exact manner the author intended. I am not planning on formally replicating her work or countering it, so there is no reason to read the entire piece. If her abstract is not indicative of her findings, it is HER fault, not mine.

And it is telling that you criticize what you ASSUME (How would you know if I looked her up?) are my assumptions about the author but make no attempt to show where I was wrong. Here is her formal bio with the UCLA School of Law.

You stated: "Bill's commentary took it even further, but one notices you don't distance yourself from it but in fact embraced his "Amerika Stinks" line."

And I still do embrace it. Describing the policy as remnants of slavery and sexism DOES reek of an "Amerika Stinks" mentality.

You stated: "As for your comments to Beth, very few pregnant women in labor are making appearances in court, much less jumping over the bench to shank a judge."

Here is your reading comprehension problem poking up again. Beth never said that the 5' 100 lb woman she saw was in labor or even pregnant. Please try to follow the conversations.

You stated: "You can keep blathering on if you like but you and Bill have now filled my red-herring quotient for the day, so I'll just leave you to it."

And the mole retreats back down the hole...

Posted by: TarlsQtr | Oct 13, 2011 1:22:01 PM

Grits stated: "Bill, I did retract that, comment, which if I recall was made years ago but which obviously still sticks in your craw: I admitted based on your recent comments that you oppose war crimes if they occurred more than 40 years ago or were committed by Communist states. I've never seen you oppose state killing in any other context, but if you'll point me to your writings where you've done so I'd be happy to extend that caveat even further."

Of course you did not retract it. Even if one was to buy the very tenuous assertion that your most recent comment is a "retraction," there were at least two other parties (SC and Dudley Sharp) involved that did NOT get the benefit of it. Your "retraction" was directed at Bill alone.

And just for clarification. What is the statute of limitation on a "baseless smear?" Does it become less of a baseless smear after one year? Two? Isn't the fact that you have not corrected it after "years" more of a statement about your obstinance and lack of character than its relevance?

Posted by: TarlsQtr | Oct 13, 2011 1:40:25 PM

TarlsQtr --

"And I still do embrace it. Describing the policy as remnants of slavery and sexism DOES reek of an 'Amerika Stinks' mentality."

Bingo!

The article reminded me of another SSRN article I saw here that claimed the United States has the death penalty because of its legacy of slavery.

This is just the Old Left smear that Amerika Stinks because of: racism, militarism, capitalism, classism, sexism, global warming, homophobia, Islamophobia, refusal to adopt vegetariansim, too many Twinkies, not enough Twinkies, you name it.

The point is not in particlar to make the case. The point is to be able to snear at the United States. There is a whole raft of 60's and 70's leftovers who just can't snear enough. It's their thing. Of course the people doing the nastiest snearing are the most indignant in claiming that THEY REALLY DO LOVE AMERIKA, uh, make that America, it's just that they can't find very much nice -- or anything nice -- to say about it.

P.S. What got me going about the "death penalty comes from slavery" piece was that it was published at almost exactly the same time that that stalwart of the Old Confederacy, Connecticut, imposed the death penalty on one of the killers in the Petit murders.

P.P.S. Please improov yer spellin.

Posted by: Bill Otis | Oct 13, 2011 1:44:29 PM

Beth stated: "Sorry TarlsQtr, I just don't think there's enough government money available to protect all public servants from random acts of violence."

A fair point as far as it is true. However, what exactly is "random" about a felon in court attacking a judge or a boyfriend and some buddies jumping a couple of COs to break out the girlfriend? We know for a fact that during times of transport there is the greatest threat of violence or an attempted escape.

And I do not believe that cost is your real concern. When I worked in a prison, we had shackles that were decades old. They are about as cost-efficient as you can get.

Posted by: TarlsQtr | Oct 13, 2011 1:54:39 PM

Grits,

In a nutshell, you are a liar and prove it for us yourself.

You claim that you have retracted the original statement but go on to say that "only a hit dog hollers," which implies that the very same statement you claim to have retracted must be true.

The only thing that keeps you from being a fraud is that I have never seen you claim to be honest.

Posted by: TarlsQtr | Oct 13, 2011 2:03:00 PM

One thing grits fails to understand is that there is a difference between the desirabiility of a policy and whether racism etc. animates it. Calling a general policy of shackling all pregnant women "racist" is, without evidence, simply a smear. That someone like Rick Perry thinks that it's not a good idea to shackle prisoners is irrelevant to the question of whether racism animates the policy.

Posted by: federalist | Oct 13, 2011 2:15:19 PM

Skimming parts of this exchange, I find it remarkable how urgently some people deny that the behaviors, beliefs, practices, etc., of their time (like the present-day enthusiasm of some corrections officials for shackling pregnant women prisoners) might -- just might -- be shaped or influenced by the behaviors, beliefs, practices, social structures, etc., of an earlier time (like owning and disposing of human beings of one particular race as chattel, or treating women of whatever race as less than fully human). It's as though some folks think that they, alone of all the human beings who've ever lived, have emerged completely dry from their lifelong swim in the sea of prior human experience that comprehensively surrounds each of us. We are social creatures and the history of our social behavior informs how each of us sees the world, how we act in it, and how we talk about it. As Faulkner famously put it of my native South, "The past is never dead. It's not even past." Anyone who can see a pregnant black woman, convict or no, handcuffed to a hospital bed without at least wondering how the willingness to manacle her there might have been at least partially shaped by the long ugly history of race-based mistreatment in America is terribly impoverished, both intellectually and morally.

Posted by: Rob Owen | Oct 13, 2011 2:16:11 PM

TarlsQtr, It is random. I'm reminded of an osha requirement that pipe layers welding pipe need to wear a helmet, long sleved shirt, long pants, face shield and goggles. In the south on a summer day they may be welding in a 20' deep trench. They are soaked with sweat, goggles are fogged and they are blind.

Somehow our policie and practices adopted to keep all workers safe become silly. I would include shackling a pregnet prisoner in labor to be part of this American syndrome. I realize you disagree, but that is sometimes what separates the policy makers from the public they work for.

Posted by: beth | Oct 13, 2011 2:31:14 PM

Rob stated: "Anyone who can see a pregnant black woman, convict or no, handcuffed to a hospital bed without at least wondering how the willingness to manacle her there might have been at least partially shaped by the long ugly history of race-based mistreatment in America is terribly impoverished, both intellectually and morally."

And what is it when the inmate is 120 lb white male that has cancer and is chained while getting chemo treatments?

And how do you explain away that such devices pre-date slavery in the new world by millennia, with primitive tethers being found in prehistoric archaeological digs?

If you cannot see how that makes the entire premise absurd, isn't the real poverty in our educational system?

In a nutshell, conservatives are always accused of being America-centric, believing that the world begins and ends on our shores. The problem with this lady's "research" and your support for it is that you both are the ones guilty of the alleged sin. Shackling prisoners (and others) started LONG before "race-based mistreatment in America."

Posted by: TarlsQtr | Oct 13, 2011 2:32:16 PM

The doctor came and said that yes, this baby is coming right now, and started to prepare the bed for delivery. Because I was shackled to the bed, they couldn't remove the lower part of the bed for the delivery, and they couldn't put my feet in the stirrups. My feet were still shackled together, and I couldn't get my legs apart. The doctor called for the officer, but the officer had gone down the hall. No one else could unlock the shackles, and my baby was coming but I couldn't open my legs...Finally the officer came and unlocked the shackles from my ankles. My baby was born then. I stayed in the delivery room with my baby for a little while, but then the officer put the leg shackles and handcuffs back on me and I was taken out of the delivery room.

http://www.amnesty.org/en/library/asset/AMR51/019/1999/en/685257e6-e33d-11dd-808b-bfd8d459a3de/amr510191999en.html

Posted by: Dott. claudio giusti, italia | Oct 13, 2011 2:46:31 PM

"And how do you explain away that such devices pre-date slavery in the new world by millennia, with primitive tethers being found in prehistoric archaeological digs?"

The relevant question to the OP is: Were those primitive tethers used to restrain women during childbirth (or, admittedly less likely, while 120lb white men were receiving chemotherapy treatment).

Posted by: C | Oct 13, 2011 3:25:08 PM

TarlsQtr --

"In a nutshell, you are a liar and prove it for us yourself. You claim that you have retracted the original statement but go on to say that 'only a hit dog hollers,' which implies that the very same statement you claim to have retracted must be true."

Bingo. In the SAME SENTENCE in which Grits claims to have retracted the accuation, he makes it again!

The guy is a piece of work.

Again, to an extent that exceeds anyone else on the board, Grits himself does exactly what he accuses others of doing. As a study in projection, he's in a category of his own.

Posted by: Bill Otis | Oct 13, 2011 3:26:08 PM

Beth stated: "TarlsQtr, It is random. I'm reminded of an osha requirement that pipe layers welding pipe need to wear a helmet, long sleved shirt, long pants, face shield and goggles. In the south on a summer day they may be welding in a 20' deep trench. They are soaked with sweat, goggles are fogged and they are blind."

You are pulling a bait-and-switch. Your earlier comment was that the victims (acts of violence) were "random", not the regulation or policy. They are not.

You stated: "Somehow our policie and practices adopted to keep all workers safe become silly. I would include shackling a pregnet prisoner in labor to be part of this American syndrome."

But this is where the wheels fall of your argument. You originally complained about cost. Shackles are far cheaper than any other method of security.

Posted by: TarlsQtr | Oct 13, 2011 6:08:14 PM

C,

You appear to be missing the big picture. Whites are shackled. Blacks are shackled. Healthy men are shackled. Healthy women are shackled. Sick men are shackled. Sick or pregnant women are shackled. Pregnant women of any race are being treated EQUALLY to any other gender, health problem, or race.

How in the world is equality racist or misogynistic?

Posted by: TarlsQtr | Oct 13, 2011 6:14:17 PM

federalist, after you've read the woman's research instead of just a summary, maybe you can let me know if she made those charges "without evidence." I suspect she provided some.

And Bill, I must say I'm flattered that you care so much about my opinion that you'd spend string after string on SL&P disputing a polemical comment from years ago, even if it's a bit tiresome that you want to make every single discussion about you.

Just to clarify, though, my caveat was pretty limited. I've only ever seen you criticize - and only recently, reluctantly, when pressed to the Nth degree - war crimes from decades ago and state killing by Communists. The essence of what I said, however, still stands. I've never seen you critical of any specific act of state killing in recent times (say, the last 25-40 years) - e.g., questionable executions, civilian deaths in Iraq or Afghanistan, police shootings of unarmed suspects, drone killings of civilians or US citizens, etc. - by your own government, as opposed to the Soviets, Nazis, etc.. Anybody can decry the actions of your enemies, which requires no courage or critical thinking at all. So I can understand why you holler like a "hit dog," even after I caveated that long-ago claim. However, don't blame me when you're the one who keeps bringing the subject up. To repeat: It's just not all about you.

@ TQ, if I don't care about Bill's opinion - who at least has the balls to issue his snide smears and bullying rhetoric under his own name, I certainly don't care about the opinion of a coward who only comments under a pseudonym. As for your spelling, it might be a typo if you didn't repeat the error every time you used the word until I pointed it out. Instead I suspect you just learned something new today.

Finally, just because some of us have lives and don't spend all day trolling SL&P comments doesn't mean you're right. It just means you're tiresome.

Posted by: Gritsforbreakfast | Oct 13, 2011 7:58:54 PM

Shackles and excessive law enforcement personnel are not cheap. You are making the case that women are shackled and guarded because they are a danger to others and that law enforcement and court officers are in danger of being assaulted. There are lots of dangerous jobs, activities, people, machines etc. etc.

You make the case that it is not based on historical racial injustice and sexism. I agree, but if it is based on safety, how much money and liberty are you willing to forfeit to always be safe? Apparently you believe that women in labor need to be shackled for someones safety. I guess I'm just not as fearful, and don't feel that authoritarian control is good for society. You have a different sensibility.

Posted by: beth | Oct 13, 2011 8:27:26 PM

Grits --

It's all true. I have not, on a forum about sentencing law and policy, denounced the United States for the war in Iraq and its inevitable civilian casualties. I have also not denounced the war in Afghanistan (escalated by Barack Obama, a man who, for whatever his many shortcomings may be, I have not, unlike you, called a "coward" (speaking of smears n' stuff)). I have not denounced "questionable executions," since questionable executions deserve questions, not denunciations. And last, along the same line of argument you advance, I have not denied beating my wife.

That's about where it is with you.

You make a wild accusation of holding monstrous beliefs, beliefs no sane person could hold. You make it against someone who has had more responsible postions that you have ever held or are qualified to hold. You then demand that I answer. When (somewhat foolishly) I do, you spin on a dime to denounce me for talking about myself!

That's just beautiful.

To be clear, I don't care about your opinion, contrary to your self-bolstering. I do care when you make point-blank statements of purported fact about what I supposedly believe. The statement was false when you made it, as you surely knew, and is false now. In this very thread, you say you retracted it, then largely contradict yourself by saying, well, not so much. When you take both sides of a question, I admit you make yourself impregnable. But at the price of making yourself silly and visibly slick.

If you ever have something both sincere and positive to say about this country, let me know. It must be wearing to be so relentlessly negative, although I concede I don't know, and am not planning to find out.


Posted by: Bill Otis | Oct 13, 2011 10:31:45 PM

Grits stated: "@ TQ, if I don't care about Bill's opinion - who at least has the balls to issue his snide smears and bullying rhetoric under his own name, I certainly don't care about the opinion of a coward who only comments under a pseudonym."

LOL Just the other day, I offered another poster a sit in on my freshman critical thinking class with the hope that he would learn about logical fallacies. I guess you are even more in need. My actual name gives no more or less credence to my statements.

You stated: "As for your spelling, it might be a typo if you didn't repeat the error every time you used the word until I pointed it out. Instead I suspect you just learned something new today."

As usual, you would not know the truth if it bit you in the backside. I said the following, "An overwhelming majority of jurisdictions shackle all prisoners, which is evidence of this fact" here: Posted by: TarlsQtr | Oct 13, 2011 12:06:17 PM

You went all third grade here, more than 30 minutes later: Posted by: Gritsforbreakfast | Oct 13, 2011 12:38:46 PM

Grits stated: "Finally, just because some of us have lives and don't spend all day trolling SL&P comments doesn't mean you're right. It just means you're tiresome.

The above unsolicited comment sure sounds like a "hit dog" to me.

It is also an interesting comment since you spend as much time on this blog as anyone and you engaged Bill and me, not vice versa.

What makes me "right" is:

A) You cannot tell the difference between opposing the shackling of pregnant women and calling the policy racist or sexist.

B) You making the claim that you "retracted" a statement and then reissuing the supposedly "retracted" statement in the VERY SAME SENTENCE.

C) Your inability to see your own common logical fallacies.

D) Your criticism of my supposed "assumptions" about the author, all the while making the assumption that I did not look her up.

E) Your continued insistence that you will not respond further to this thread, yet you continue to return.

It is indeed the facts that make me correct and you look the fool.

Posted by: TarlsQtr | Oct 13, 2011 11:53:10 PM

Wow:

I just came upon this post and thread now (well past my bedtime) and noticed that TQ, megalomaniac and legend in his own mind, previously said in a separate post a few months ago (all, most, some, few (he didn't try to describe what he actually meant at the time and is piling it high and deep now,(PH.D)), that those who play violent video games become (THOSE PEOPLE) who become parasites of the government. His son (toddler) would not play these games because he just knew. Wow!

And Bill is just pissed off because his GOD (Congress, i.e., the HoR hearings yesterday), did not pay his POV enough homage, or even any interest.

Bill, you were just a DOJ underling and now a Law Professor who cannot assure any of his students a real ROI (unless they join the gubermint).

Both Bill and TQ must be off their meds!

Well, toodle-loo, I'll look back in a few weeks!

beth: You are correct in your observations!

Scott: keep up the good work. We need you!

Posted by: albeed | Oct 14, 2011 1:51:01 AM

albeed --

"And Bill is just pissed off because his GOD (Congress, i.e., the HoR hearings yesterday), did not pay his POV enough homage, or even any interest."

You keep saying Congress is my "GOD." Are you nuts? As to the views of the Subcommittee, you know zip about them. I have confidence in Chairman Sesnsenbrenner and Chairman Smith and am grateful to have been invited to appear.

"Bill, you were just a DOJ underling and now a Law Professor who cannot assure any of his students a real ROI (unless they join the gubermint)."

It's true that for my first few years I was an underling. Later I became a division chief. That is something like making partner in a big firm, albeit without the pay. If you want to characterize that as being an "underlying," feel free.

Later I was Special Counsel for President George H. W. Bush. You may characterize that in any way you care to.

You are entirely correct that I cannot assure my students any particular ROI on their tuition dollar. Of course they make the decision to enter law school well before I have any contact with them. My class is an elective; no one has to take it. It is nonetheless oversubscribed every year.

Do you think you could stand down from your glorious assessment of your own intellect to permit the students, all of whom are adults, to decide for themselves how they want to spend their time and money, rather than your doing it for them? Think you could do that?

"Both Bill and TQ must be off their meds!"

SOMEONE is off his meds.

Posted by: Bill Otis | Oct 14, 2011 6:01:02 AM

Albeed stated: "I just came upon this post and thread now (well past my bedtime) and noticed that TQ, megalomaniac and legend in his own mind, previously said in a separate post a few months ago (all, most, some, few (he didn't try to describe what he actually meant at the time and is piling it high and deep now,(PH.D)), that those who play violent video games become (THOSE PEOPLE) who become parasites of the government. His son (toddler) would not play these games because he just knew. Wow!"

I just love it when people attempt to state what others "said" and get nearly all of the facts wrong.

Actually, I called violent video games and TV "brain rot" and noted that too much screen time inhibited proper development, which was backed up by posting numerous studies showing that they increase violent behavior and decrease academic performance. I never said, I "just knew", I supported it with science, nor did I call anyone "those people." Now, do you really want to question whether criminal violent behavior and lack of an education result in increased incarceration and/or poverty (government assistance)? In other words, as you put it, "parasites of the government?"

Nor is my son a "toddler." You see, when you cannot even get the basic facts of a conversation correct, your entire premise is in question.

Finally, I am uncertain regarding your incoherent insertion of "Ph.D" into your post. I do not have one nor have I claimed to.

Posted by: TarlsQtr | Oct 14, 2011 8:37:48 AM

Beth stated: "Shackles and excessive law enforcement personnel are not cheap."

Shackles are cheap, law enforcement is not. And in some areas, it IS overstaffed. The problem you have is that an overwhelming majority of your countrymen disagree that our level of law enforcement personnel is "excessive." Other than on this forum from the Amerika Sucks crowd, I seldom hear people complaining that there are too many cops. In fact, The Liberal Messiah himself has put law enforcement as one of the main beneficiaries of his supposed "Jobs Bill."

Beth stated: "You are making the case that women are shackled and guarded because they are a danger to others and that law enforcement and court officers are in danger of being assaulted. There are lots of dangerous jobs, activities, people, machines etc. etc."

Security is far more than a CO, cop, or judge being attacked. The job of corrections is to keep people that are supposed to be in prison, in prison. Shackles are a very effective tool to those ends.

And as I have already stated to Grits, my original post did not come out for or against the policy. (Personally, I have no problem if jurisdictions want to use it, nor do I have a problem if they do not, like Texas.) It was against the asinine assertion that jurisdictions that did use it had motivations based on slavery and misogyny. I would point out that even if Ms. Ocen's premise was correct, it would still be one gigantic logical fallacy. The policy can still be right, even if the motivations/rationale for it are wrong. To your credit, at least you are addressing the merits (or lack)of the practice.

You stated: "You make the case that it is not based on historical racial injustice and sexism. I agree, but if it is based on safety, how much money and liberty are you willing to forfeit to always be safe?"

I could be wrong, but I suspect if the money were being spent to provide free healthcare, more gubment cheese, or abortions to "save the mother" (cough-cough), you would have far less concerns about spending it to keep people safe.

Or better yet, would you support keeping inmates in labor in the prison medical ward cared for by other inmates acting as midwives? Sure, some would die due to complications but how much money are you willing to forfeit to always be safe? This would easily be the cheapest AND most secure method. Are you on board?

Beth stated: "Apparently you believe that women in labor need to be shackled for someones safety."

Again, that is up to each jurisdiction.

Beth stated: "I guess I'm just not as fearful, and don't feel that authoritarian control is good for society. You have a different sensibility."

LOL, "authoritarian." If by that you mean, that I think we should obey constitutional principles and the laws proceeding from them, then I am guilty. I would point out that two people most liberals would not call "authoritarian" (Boy Wonder and his sidekick Veep, Boy Blunder) are/were the main drivers behind the current jobs bill (intended to give more funds to hire police) along with the COPS program and Violent Crime Control and Law Enforcement Act of 1994. Both of these did multiples more to create "excessive law enforcement personnel" than shackles.

Posted by: TarlsQtr | Oct 14, 2011 9:40:42 AM

I looked over the article and wondered about "poor white trash" female inmates. The emphasis of race, which is reasonable up to a point given how much race tainted criminal justice historically speaking, only goes so far in my mind. It is also a gender (looking past race, the article suggests the women here are deemed "masculine" since good women aren't criminals) and class issue. That to me would merit a nuanced treatment of the issue as compared to how "cruel and unusual" treatment is determined in other contexts.

Posted by: Joe | Oct 14, 2011 2:04:13 PM

Bill, in the interest of promoting goodwill, I'll grant that you don't beat your wife without even looking up your home address and checking the 911 logs and police records to verify it, as I would if, say, a political candidate publicly made that claim. You're welcome.

Otherwise, I don't understand what you want from me. It's you, not me, who insist on dredging up a literally years-old, polemical comment from a death-penalty string (where, as I recall, you gave as good as you got) and pretending that I was claiming you supported all state killing instead of reading the quote in the context it was made, which was specific to death penalty sentencing.

So it's you, not me, who want to expand the debate beyond sentencing law issues. You insist on doing so in post after post after post, driving every comment string off topic to re-hash this perceived slight to your integrity that nobody would remember if you didn't keep bringing it up. Then when I finally take the bait and ask if there are any examples of state killing you do oppose, you say you opposed it when the Soviets did it, and you weren't a fan of the My Lai massacre, but you'll go no further.

Personally I'd prefer that comment strings focus on the subjects of the posts, if only out of respect to our host, but since you insist on bringing up that same, out of context quote over and over, I responded. If you don't like debating those subjects, then stick to the topics Doug has invited us to discuss. I can only conclude that when you choose not to do that, it's because you find yourself making weak arguments and prefer to divert attention from them.

TQ, you're not worth responding to. Even if Bill thinks he's been slighted, I at least respect that he issues his opinions under his own name and occasionally makes actual arguments. You're just a hack and a coward who pretends to hold others accountable while misstating their views and refusing to be held accountable yourself. As I said: Tiresome.

Posted by: Gritsforbreakfast | Oct 14, 2011 7:54:01 PM

Grits stated: "TQ, you're not worth responding to."

Yet you continue to do so. Over and over again. The dog keeps hollerin'.

Grits stated: "Even if Bill thinks he's been slighted, I at least respect that he issues his opinions under his own name and occasionally makes actual arguments."

Hey, anyone can commit a logical fallacy on occasion but you choose to do it repeatedly even when it has been pointed out. Please tell us how my name (or anyone else's) makes an opinion more or less credible. Hint: It does not.

In any event, your opinion is the most worthless one on the board. You are a proven liar, most recently indicated by your so-called "retraction."

Grits stated: "You're just a hack and a coward who pretends to hold others accountable while misstating their views and refusing to be held accountable yourself."

LOL How lame. Please show where I have misstated views and refused to be held accountable for anything. At least you are not into "baseless smears!"

Grits stated: "As I said: Tiresome."

So tiresome that you keep responding? Speak, doggie, speak!

Posted by: TarlsQtr | Oct 14, 2011 11:14:10 PM

Grits --

"Bill, in the interest of promoting goodwill, I'll grant that you don't beat your wife..."

It would actually be more plausible to accuse me of beating my wife, since wife beating gets done a lot, but I never heard of anyone who thinks all killing by the state is inherently good in all circumstances.

I'm going to assume that you're sincere in saying you're interested in goodwill, and answer in that spirit. I have read your personal blog, and you are a completely differnt person there. I have also read your Grits blog, and it strikes me as professional in attitude and informed. In addition, our exchange recently about the death penalty was businesslike and productive. So the possibility of a better way forward may be there.

"I don't understand what you want from me."

Then I'll lay it out.

1. Let me speak for myself. Rather than formulate what you think my attitude toward state killing (or anything else) is, just quote me. My words are all over this blog, on Crime & Consequences, occasionally in the paper, in the Congressional record, and in any number of briefs filed for the United States.

2. Allow the proper subject of posts to be decided by the blog owner. You upbraid me all the time for going off topic, but Doug has not done so once. Does this tell you something?

3. Understand that people with opposing viewpoints are not Satan. The only reason I can figure out that the tone of your posts here is so much more aggressive than it is on your own blogs is that you think the commenters you're talking to here are bad people. Some of them might be, but one cannot assume that, or conclude it on anything other than the basis of strong evidence.

4. Adopt the virtues of balance in approaching criminal law. The government has it flaws, you bet. But so do defendants. It is not necessary ALWAYS to take the defendant's side. Some of them -- indeed, many of them -- are bad news.

5. Adopt also the virtues of gratitude. Those of us fortunate enough to live in this free and prosperous country are living in surroundings vastly superior to what most of the human race experienced over most of its history. This did not happen by magic. It happened because the Framers put down a foundation that allows human beings to flourish, and because thousands of people more brave than I were willing to defend it. This is not a state of affairs that calls for unleavened criticism, and still less bitter criticism.

6. Be honest even when it hurts. There was a recent poll out from Gallup showing support for the DP had slipped to a 39-year low. The morning it came out, I put it up on Crime and Consequences, and I didn't hide what it said.

Bloggers and commenters on blogs owe honesty to their readers. But entirely apart from that, honesty is a virtue unto itself, and does not need any independent reason to prevail. And it means more than just saying true and only true things. It means being forthcoming.

Lastly, you and I are just very different people. You see a different country from the one I see. You use language in a manner different from the way I use it. The difficulites that result from that will very likely continue to crop up in any circumstances.

Posted by: Bill Otis | Oct 15, 2011 2:50:46 PM

great post bill. seems to sum up things perfect! as far as general behavior for anyone.

Posted by: rodsmith | Oct 17, 2011 1:26:15 AM

rodsmith --

Thanks!

Posted by: Bill Otis | Oct 17, 2011 11:57:41 AM

your welcome.

you know me. if i think your right. i'm going to tell you!

of course if i think your wrong...i'm gonna tell you that too!

Posted by: rodsmith | Oct 17, 2011 1:53:24 PM

rodsmith --

You should move to Washington, DC. We need someone here was doesn't sling BS.

Posted by: Bill Otis | Oct 17, 2011 7:05:39 PM

no thanks. had to go there back in the late 70's while in the airforce. had the hives for weeks afterward! guess i'm allergic go lieing politicians!

Posted by: rodsmith | Oct 18, 2011 12:33:01 AM

besides they wouldn't like me! my rules would be simple!

If you dont' make it in this country. you don't sell it here!

If you sell it here. You WILL be taxed on what you sale! NO matter where your so-called hq is!

IF your country doesn't allow our products in yours.. You dont get to bring yours here! We will match you item by item!

The UN is a waste and a joke. it would get 72h to move it's tail to zurick with the rest of them!

Since i seem to have slept though the vote that made us the policeman of the world. That would end!
All Military bases OUTSIDE our own territory would be closed. NOTHING would be left that was not there when we started the base even if this required demoliton before leaving!
The troops could be placed in new bases where needed IN OUR OWN country along the border to control our border as is allowed by all of human history and all resent treaties! All that money would be spend HERE not around the world!

I'm with patton. If someone must die for their country....make it the OTHER GUYS! If anyone wants to start something NUKE the bastards and move on! I'm pretty sure we would only have to do it once!

as for washingtion. Their self dealt exemption to the laws they pass would be OVER if it doenst' apply to them...it is illegal and revoked automatically!

any bill that passes that is ruled to be unconstuional I.E. ILLEGAL by the U.S. Supreme court will be investigated and if it is found that the politicans were told by legal counsel that it would be uncostutional...those politicians would be considered criminal actors and prosecuted if necessary depending on the law passed for treason!

Posted by: rodsmith | Oct 18, 2011 12:44:09 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB