Friday, February 14, 2014

Series of thoughtful posts on faith-based prisons

Sasha Volokh this week has done an effective series of informative posts on what we know and do not know about faith-based prisons.  The final one is available at this link, and it starts and ends this way:

This is the final post in a series on the effectiveness of faith-based prison programs, based on my recent Alabama Law Review article, Do Faith-Based Prisons Work? (Short answer: no.)  Monday’s post introduced the issue,  Tuesday’s post surveyed some of the least valid studies, Wednesday’s post critiqued the studies that used propensity score matching and discussed other possible empirical strategies, and Thursday’s post talked about the most valid studies–those that used rejected volunteers as a control group.

Throughout, I’ve been putting the faith-based prison research side-by-side with the private schools research, because evaluations of each raise similar methodological problems.  The fact that both are voluntary means that they can attract fundamentally different sorts of people, so their good results might be attributable to the higher-quality participants they attract.  Today’s post ties the ends together and asks whether there’s any way forward for faith-based prisons....

Let’s take the broad view and come back to the education studies that I’ve been using as a point of comparison throughout this Article.  Finally, after decades of research, we have some credible studies estimating the effect of private schools. The best evidence, taken from studies comparing accepted and rejected applicants, indicates that private schools do have a positive effect on the students who attend them, at least for black students and at least for math scores.

On the one hand, one can observe that, next to these results (modest as they are), it’s all the more disappointing that faith-based prisons haven’t shown much in the way of significant positive effects. But on the other hand, it took decades of research and debate by different groups, each using a slightly different empirical approach — and many finding little to no effect — before we got even the mild results we have on private education. This suggests that we should encourage more research on the matter, in different contexts, using a variety of different empirical techniques.

The result is that, if there’s no strong reason to believe that faith-based prisons work at all, and even less reason to believe that they work better than comparably funded secular programs, there’s also little reason to believe that they don’t work, and in many cases they may be the only available alternative. It’s probably sensible to allow such programs to operate and to allow the process of experimentation to work its course, provided that all this can be done constitutionally.

February 14, 2014 in Prisons and prisoners, Religion, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Thursday, February 07, 2013

Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?

The provocative question in the title of this post is prompted by this recent post by Bill Otis over at Crime & Consequences under the provocative heading "DOJ Goes Stark Raving Mad." Here are excerpts of Bill's perspective on a high-profile federal sentencing case:

Regular readers know that I'm no fan of wimpy sentencing, and that I've had it with the every-excuse-in-the-book style of defense lawyering.  But there are limits.  DOJ went well beyond them when it sought a life sentence for an Amish bishop convicted of conspiracy to forcibly cut beards....

Bishop Samuel Mullett is not Mr. Nicey, according to the government's sentencing memo. The story reports that, in addition to leading the beard-cutting conspiracy for which he was convicted, prosecutors "characterized Mullet as an iron-fisted bishop who exerted total control over his flock: He censored his followers' mail, had sex with married women under the guise of marital counseling, endorsed bizarre punishments such as confinement in chicken coops and spankings, and laughed at the attacks, which were driven by a crusade to punish those who spurned his teachings."

Those are bad things, and if they are true, they are properly taken into account in federal sentencing....  But life? Is this guy Ted Kaczynski?  Zacarias Moussaoui?  Not exactly.  How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy? They might just be smoking weed, but I suspect something else, less groovy and more ominous, is at work.

This seems to be a part of the present administration's snarling hostility to religion. And one must admit the defendant makes a politically apt target.  This "bishop" sounds like a first-class thug, and he heads a splinter group in what is itself a very small, conservative, insular religion that must seem to Eric Holder to be ripe for the pickin'.  But this is taking liberal detestation of religion to an absurd extreme.  What happened to government neutrality?  Could a sentencing recommendation this far off the wall possibly have come about without at least an element of anti-religious bigotry?

What we have here is a 67 year-old man with no prior record (so far as I know or is reported in the story) who organized, and then (apparently) laughed at, beard cuttings.  It's only when viewed in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense.

Does the "bishop" deserve jailtime?  You bet, and I hope he gets it.  But life in the slammer? DOJ's action would be a joke if, on account of its menacing, if only shadowy, political and cultural motivations, it weren't so dangerous.

I find Bill's perspective here quite stunning (and telling) given Bill's oft-stated affinity for making the federal guidelines mandatory again and his advocacy for long-terms of incarceration to incapacitate dangerous offenders.  Let me explain (using some of Bill's own words):

1. Bill asks "How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy?"; he asserts that only "in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense." Actually, DOJ is only recommending a within-guideline sentence for Samuel Mullet Sr. (and it is recommending well-below guideline sentences for all the other Amish defendants).  In other words, it is only the crazy "funhouse mirror" of unduly severe federal sentencing guidelines (and the continued affinity for these guidelines stressed by folks like Bill) which makes this crime appear to be an LWOP offense.

2. As referenced in the government's sentencing memo, many other members of the Amish community have written to prosecutors to stress that Samuel Mullet Sr. is a religious terrorist comparable to other violent zealots quick and eager to do great harm to anyone who does not follow his edicts or share his views.   My own disaffinity for severe sentences was tempered as I read these letters from members of the Amish community; I came to think that showing real respect for the Amish religion may require a severe sentencing term for Mullet and his most radical followers.

3. The government's sentencing memo and related materials certainly indicate (a) that the Amish community has been much safer since Mullet's arrest, and (b) that Mullet has shown no remorse and may well return to his terrorizing ways if and whenever released from custody.  Though I am not a big fan of using vague concerns about recidivism to justify longer terms of imprisonment, in this case the risk of recidivism seems quite significant and the future crimes would surely be directed toward the very Amish community whom Bill thinks DOJ is here disrespecting.

I could go on and on, but I want to give Bill and chance to respond in the comments and also allow others to share their perspectives on this fascinating case.  (I should note that I share the view that an LWOP sentence here is overkill, though I see this as an overkill prompted by dysfunctional federal sentencing guidelines, not a religion-hating DOJ.  And though Bill never indicates what kind of prison term would be fitting in his eyes, I think something in the neighborhood to 10 years may be about right to achieve all the diverse and challenging federal sentencing purposes implicated in this case.)

Whatever else one thinks about these issues, this Amish beard-cutting case surely provides yet another example of the many ways in which difficult sentencing cases can starkly reveal (a) how problematic any rigid system of sentencing guidelines can often be, and (b) what values are at the core of various persons' diverse sentencing perspectives.

Related related posts:

February 7, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (67) | TrackBack

Saturday, September 22, 2012

"A Biblical Value in the Constitution: Mercy, Clemency, Faith, and History"

The title of this post is the title of this interesting new paper by Professor Mark Osler now available via SSRN.  Here is the abstract:

The United States Constitution is a strikingly secular document, and claims that the United States was founded as a “Christian Nation” find little support there.  However, the majority of Americans are Christian, and it should not be surprising that many of them look for a reflection of their faith’s values in the government that is structured by that secular Constitution.

This article urges that those who seek Christian values in the government processes allowed by the secular Constitution pay greater attention to the neglected pardon clause. The exercise of mercy is a fundamental Christian imperative, and the idea of pardon is an important and compelling theme in the gospels themselves: Jesus was nearly granted clemency by Pilate, and Jesus himself grants a pardon to the woman who is about to be executed in John 8.  To the serious scholar who believes in both the imperatives of Christ and the secular limitations of the Constitution, the pardon power provides a rare instance of those roads running together.

September 22, 2012 in Clemency and Pardons, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, September 20, 2012

Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter

As reported in this New York Times article, "Jury Convicts Amish Group of Hate Crimes," a notable religious dispute is now a fascinating federal sentencing matter. Here are the basics:

Samuel Mullet Sr., the domineering leader of a renegade Amish sect, and 15 followers were convicted of federal conspiracy and hate crimes Thursday for orchestrating a series of bizarre beard- and hair-cutting attacks last fall that spread fear through the Amish of eastern Ohio.

The convictions of Mr. Mullet and his followers and family members who carried out the assaults could bring lengthy prison terms. The jury’s verdict vindicated federal prosecutors, who made a risky decision to apply a 2009 federal hate-crimes law to the sect’s violent efforts to humiliate Amish rivals.

Mr. Mullet, 66, founder of a community near Bergholz, Ohio, and 15 followers, including six women, were tried for their roles in five assaults on people that Mr. Mullet had described as enemies. The jury heard three weeks of testimony and deliberated more than four days before reaching a verdict midday Thursday.

Although Mr. Mullet did not directly participate in the attacks, prosecutors labeled him the mastermind of the assaults, in which groups of his followers held down victims and sheared their beards and hair. Among the traditional Amish, men’s long beards and women’s uncut hair are central to religious identity. Prosecutors argued that the attacks were intended to humiliate those who questioned Mr. Mullet’s cultlike methods, like forcing errant followers to live in chicken coops and pressing married women — including his own daughter-in-law — to accept his intimate sexual “counseling.” ...

The high-profile nature of the case, and the stakes for the defendants, were raised when Steven M. Dettelbach, the United States attorney for the Northern District of Ohio, stepped in to charge Mr. Mullet and 15 others, including several of his children and other relatives, with federal conspiracy and hate-crime charges that carry potential sentences of 10 years per count.

The defendants did not deny their roles in the attacks, which were carried out with battery-powered clippers, scissors and razor-sharp shears that are designed to trim horse manes. Rather, the case turned on the motives for the attacks and whether it was appropriate to make them into a major federal case under a 2009 hate-crimes law.

To prove the most serious charges, the jurors had to be convinced that the defendants had caused “bodily injury,” which could mean “disfigurement,” and that the attacks on nine of the victims were based mainly on religious differences.

Lawyers for the defense argued that cutting hair was not disfigurement and that the attacks resulted from family and personal differences, including a bitter custody battle involving a daughter of Mr. Mullet’s, as well as disputes over the “true” Amish way. They argued that prosecutors had overreached by labeling the assaults as religiously inspired hate crimes.

I have not yet looked into how the US Sentencing Guidelines might be calculated in this unique case, but I have a feeling that the debates over sentencing could end up as dynamic and as controversial as the debates over making this matter a federal criminal case in the first instance.

September 20, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Religion | Permalink | Comments (10) | TrackBack

Tuesday, July 10, 2012

Distinct headlines with distinct stories on modern intersections between Bible and jail

BH03The picture reprinted here is an overhead view of the historic Eastern State Penitentiary, and here below are a few passages from a lengthy discussion of the famed prison's early history:

Eastern State Penitentiary broke sharply with the prisons of its day, abandoning corporal punishment and ill treatment. This massive new structure, opened in 1829, became one of the most expensive American buildings of its day and soon the most famous prison in the world.  The Penitentiary would not simply punish, but move the criminal toward spiritual reflection and change....

Eastern's seven earliest cellblocks may represent the first modern building in the United States.  The concept plan, by the British-born architect John Haviland, reveals the purity of the vision.  Seven cellblocks radiate from a central surveillance rotunda.  Haviland’s ambitious mechanical innovations placed each prisoner in his or her own private cell, centrally heated, with running water, a flush toilet, and a skylight.  Adjacent to the cell was a private outdoor exercise yard contained by a ten-foot wall.  This was in an age when the White House, with its new occupant Andrew Jackson, had no running water and was heated with coal-burning stoves.

In the vaulted, skylit cell, the prisoner had only the light from heaven, the word of God (the Bible) and honest work (shoemaking, weaving, and the like) to lead to penitence.  In striking contrast to the Gothic exterior, Haviland used the grand architectural vocabulary of churches on the interior.  He employed 30-foot, barrel vaulted hallways, tall arched windows, and skylights throughout.  He wrote of the Penitentiary as a forced monastery, a machine for reform.

The historic and intricate links between incarceration, religious commitments and the Bible are on my mind today because of these two very different recent stories reporting on two very different modern intersections of Bible study and imprisonment:

July 10, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, April 19, 2012

Noting the notable role of Catholicism in recent state death penalty abolition efforts

Today's Washington Post ran this interesting story headlined "Catholic activists pushing politicians to turn tide against the death penalty." Here are excerpts:

Soon, probably next week, Connecticut Gov. Dan Malloy will sign into a law a bill that abolishes the death penalty in his state. When he does, Connecticut will be the fifth state to enact such legislation in as many years — and the third with a governor who was raised a Roman Catholic....

Powerful, vocal Roman Catholics have been much in the news of late, mostly for their hard-line positions on abortion and birth control, and their self-serving rhetoric on the subject of religious rights in the health-care debate.  But Catholic activists are playing another political role, too — under the radar — on an issue that hasn’t made the same sorts of headlines.

They are helping to turn the tide of public opinion in the United States against the death penalty.  (According to a Pew poll earlier this year, about a third of Americans now oppose capital punishment, up from 18 percent in the mid-1990s.)  And they are appealing to the consciences of Roman Catholic politicians to do it.

The sanctity of human life is central to Catholic theology, and for death penalty opponents, this sanctity extends as much to living men and women convicted of capital crimes as it does to embryos and fetuses....

Last November, a delegation of international death-penalty opponents was invited to a private audience with Pope Benedict XVI.  There, the pope praised and encouraged “the political and legislative initiatives being promoted in a growing number of countries to eliminate the death penalty.”...

In 2011, on Ash Wednesday, Gov. Pat Quinn signed legislation that abolished the death penalty in Illinois.  Quinn had attended Catholic schools as a child and went to Georgetown University but had long supported capital punishment.

After the bill passed in the Illinois legislature, he pondered his decision for months — for, as he puts it, “there are people of great conscience on both sides of this debate.” During that time, he received a visit from Sister Helen Prejean, the author of “Dead Man Walking,” and a call from the Catholic death-penalty opponent Martin Sheen. For guidance, he read Scripture, and on the morning he signed the bill, he read from the writings of the late Chicago Cardinal Joseph Bernardin....

Since then, he has become part of the country’s informal network of prominent Catholic death penalty opponents. He phoned Malloy to offer his congratulations on the passage of Connecticut’s bill and has told California Gov. Jerry Brown — who had at one time considered becoming a priest — that he supports anti-death-penalty efforts in his state.

Before the vote in Connecticut, the Society of St. Egidio, an international group of lay Catholics based in Rome, sent letters to key Catholic members of the state Senate, appealing to their consciences.  “I am sure that it will be possible,” the letter said, enticingly, “to create a special event at the Coliseum in Rome to tell the world that Connecticut has taken the lead to abolition. ... The world will be able to love your state even more than now.” Mario Marazziti, St. Egidio’s spokesman, said the letter helped to swing undecided votes in support of abolition.

Some older posts on religion and the death penalty:

April 19, 2012 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, March 18, 2011

Swift answer to my blog prayers seeking information on faith-based prisons

Yesterday I asked this post "What is the current status and latest research on faith-based prisons?". Today, thanks to Professor Sasha Volokh my blog prayers have been answer via this article available now on SSRN titled "Everything We Know About Faith-Based Prisons."  Here is the headline of today's must read:

This Article examines everything we know about the effectiveness of faith-based prisons, which is not very much.

Most studies can’t be taken seriously, because they’re tainted by the “self-selection problem.”  It’s hard to determine the effect of faith-based prison programs, because they’re voluntary, and volunteers are more likely to be motivated to change and are therefore already less likely to commit infractions or be re-arrested.  This problem is the same one that education researchers have struggled with in determining whether private schools are better than public schools.

The only credible studies done so far compare participants with non-participants who volunteered for the program but were rejected.  Some studies in this category find no effect, but some do find a modest effect.  But even those that find an effect are subject to additional critiques: for instance, participants may have benefited from being exposed to treatment resources that non-participants were denied.

Thus, based on current research, there’s no strong reason to believe that faith-based prisons work.  However, there’s also no strong reason to believe that they don’t work.  I conclude with thoughts on how faith-based prison programs might be improved, and offer a strategy that would allow such experimentation to proceed consistent with the Constitution.

March 18, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 06, 2010

"People who commit crimes do so because of disorderly souls"

The title of this post is one line from this lengthy commentary by Eric Simpson, an associate editor of In Communion: The Journal of the Orthodox Peace Fellowship, that appears at The Huffington Post.  The piece's is titled "I Changed My Mind on the Death Penalty," and the author explains why, when he became an "Orthodox Christian, [his] views began to change rather swiftly over a period of years [as he] began to meditate on the meaning of divine Love, ... [and] as a response to [his] understanding of who God is, what Christ accomplished, and what the Traditions of the Church teach." Here is how the piece concludes:

It may seem radical to say, therefore, that the murderer is to be pitied rather than hated because he has made his soul a hellish place, whether it is felt by him on an immediate level or not.  The cocksure smirks of the denizens of hell would be plastered across the psychopath's face whether we put him to death or not.  It is a demonic sign, and where there are demons -- even if the demons are merely psychological afflictions -- there is torment. I see criminal smirks and empty bravado, even totally lack of affectation or regret, as signs of torment, and they do not bother me.  For me to react in a similar fashion -- with violence and hatred -- by putting him to death does nothing more than carry me closer to his level of hell, whether it is sanctioned by the state or not.  It does not satisfy my own sense of grief and loss.

Where the murderer lacks decency and compassion, we should show him what true decency and compassion is, otherwise we become just like him.  Where the murderer has no value for life, responsible state policy should rather affirm life, rather than confirm the murderer's impulse to end it. Otherwise, we are doing nothing more than making a mockery of the principle of justice as exemplified by Christ himself.

In addition to making for an interesting read, this piece reinforces my own sense that many persons' with strong perspectives on the death penalty often have their views grounded in faith rather than in reason or science.

Some older posts on religion and the death penalty:

May 6, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (11) | TrackBack

Thursday, January 28, 2010

Can and should religious considerations influence bail decisions?

The question in the title of this post is prompted by this interesting recent story over at a Wall Street Journal blog that is headlined "Rabbis Request Bail For Rubashkin." Here are the basics: 

Seven rabbis traveled to Washington, D.C., Tuesday seeking a remedy for what they say is overly harsh and unjust treatment of Sholom Rubashkin, the former Agriprocessors executive convicted of fraud at the kosher meat packing plant, which filed for bankruptcy protection in 2008.

The rabbis, who lead such Orthodox Jewish membership organizations as the National Committee for the Furtherance of Jewish Education and the Rabbinical Alliance of America, are demanding the release on bail of Rubashkin as he awaits sentencing on the 86 counts of financial fraud that a federal jury found him guilty of last fall.  The 8th U.S. Circuit Court of Appeals denied Rubashkin’s request for bail earlier this month, according to The Gazette of Cedar Rapids, Iowa, but Rubashkin recently appealed their decision.

Speaking at a press conference at the National Press Club Tuesday, Rabbi Chaim Dovid Zwiebel of Agudath Israel of America said the rabbis weren’t there to discuss Rubashkin’s actual and supposed wrongdoings. (In addition to the financial fraud, Rubashkin also faced charges that he violated federal immigration laws at the Iowa plant where 389 illegal immigrant workers were notoriously arrested in a federal raid in May 2008.  Prosecutors dropped the 72 charges after Rubashkin’s first trial.)

Rather, Zwiebel said they sought to address “a humanitarian issue” — that Rubashkin, himself an Orthodox Jew, has been unable to fully practice his faith in prison, and that prosecutors have unjustly pushed to keep him behind bars until he gets his prison sentence. “We believe local federal prosecutors have been extraordinarily inflexible and harsh” in their urging the courts to reject bail, Zwiebel said.

The rabbis denied allegations that Rubashkin would be a flight risk, arguing that his and his family’s travel documents have been surrendered and that Rubashkin fully complied with the terms of his bail before his trial began.  Zwiebel pointed out the “heart-rendering aspect” of the case, that a father of 10 may not be able to spend time with his wife and kids before beginning a long prison term.  (Federal prosecutors are recommending between 21 and 27 years behind bars.)

While these rabbis are basically suggesting that religious considerations should provide a basis for prosecutors (and presumably judges) to be willing to allow Rubashkin to be out on pre-sentencing bail, I cannot help but wonder if religious considerations might have been a factor in the initial decisions to be unwilling to allow Rubashkin to be out on pre-sentencing bail.  There are, I believe, a number of notable cases in which Jewish offenders have fled to Israel and resisted extradition in the past.

Is it uniquely wrong to deny bail partially on religious grounds, but justified to grant bail partially on these grounds?  Or should the issues work as one-way rachet in the other direction against bail?  And are any of these questions of constitutional dimension in light of the First Amendment's religion clauses?

UPDATE:  Eugene Volokh has this characteristically thoughtful discussion of these matters in this new post:

It seems to me that it’s improper, and unconstitutional, to give people a break when it comes to bail because of their religious practices.  I’m sure that being in jail does interfere with people’s religious practices.  There are minimum requirements of religious accommodation for inmates (for instance, some sort of kosher or halal food would generally have to be available to Jewish or Muslim inmates), but I’m sure that the inmates can’t have the same sort of religious life that they can have outside; and jail regulations aimed at legitimate security purposes may even end up forcing the inmates to violate some of their felt religious obligations.  The story isn’t clear on exactly what the burden on Rubashkin’s religious practice is, but I can easily believe that there is such a burden.

But it seems to me that the question of which defrauders — or robbers or drunk drivers or whoever else — stay in jail and which go free, even temporarily, can’t be decided in a way that gives the religiously observant a special break (or for that matter that gives atheists or agnostics a special break).  Whatever the permissible scope of special accommodations for religious observers (for a bit more on this, see here), I don’t think such accommodations can extend to granting bail based on a person’s felt religious obligations and the difficulty of continuing to comply with them in jail.

January 28, 2010 in Procedure and Proof at Sentencing, Religion, White-collar sentencing | Permalink | Comments (42) | TrackBack