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July 23, 2010

"Rough justice: America locks up too many people, some for acts that should not even be criminal"

The title of this post is the headline of this new commentary in The Economist.  Here is how it gets started:

In 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces.  They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men).  Its imprisoned population, at 2.3m, exceeds that of 15 of its states.  No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.

The linked briefing is also a must-read, and it is headlined "Too many laws, too many prisoners: Never in the civilised world have so many been locked up for so little."

July 23, 2010 at 12:10 PM | Permalink


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Lock 'em up and throw away the key! Make them bunk with murders and rapists, that'll learn 'em! And when the confinement portion of their sentences are complete and the offenders re-enter society and attempt to move on with their lives, let's make sure to make re-entry as difficult as possible for the vile scofflaws. Take their guns, take their voting rights, refuse them gainful employment. While we're at it, might as well brand a big, red "F" on their foreheads so everyone knows who the Evil Felons are.

After all, a felon's a felon, right, Mr. Otis?

Posted by: DanF | Jul 23, 2010 12:59:55 PM

Thanks for this link.

Posted by: beth | Jul 23, 2010 5:37:27 PM

"After all, a felon's a felon, right, Mr. Otis?"

We are waiting Mr.O

Posted by: Waiting For a Reply | Jul 23, 2010 5:45:05 PM

I don't think the Rent Seeking Theory is well taught in the government dependent, left wing biased, economics departments of the nation. Although left wing, the economists are still not as axtreme as teh lawyers.

The law is money making confiscatory scheme of the lawyer. The Theory explains all anomalies, all mysteries, all nutty decisions and behaviors of judges. This bunko operation is a version of the business model of the Inquisition. "You balsphemed by eating meat on Friday, now you must burn at the stake. Give your estates to the Church, and perhaps we can make deal for you." It is not well known, the Inquisition hunted the middle class. It ended only when the French Revolution beheaded or expelled 10000 high Church officials.

A violent revolution against this legal system has good moral and intellectual justification, since there is no legal recourse. The lawyer has the system sealed airtight. The lawyer will send in Army Airborne to maintain its unjustifiable powers and wealth. They are easily disposed of by persistent insurgency methods. However, any war today would be so destructive as to be a crime against humanity itself, whatever the justification. I have no answer likely to be effective.

Posted by: Supremacy Claus | Jul 23, 2010 6:41:39 PM

Although I am not certain that the Lacey Act prosecution is a particularly good example for the article's main thesis, there are plenty of more apt cases that are illustrative of the article's main point. I am not sure that we incarcerate too many people, but I am certain that we incarcerate way too many people for way too long. In my district, drug offenders with very little criminal history who are caught up in methamphetamine conspiracies are routinely subject to 10 and 15 and 20 year sentences. While some number of them have some minor criminal histories, many, if not most, have never been incarcerated before. I think that is significant. I truly believe that a large number of these offenders, many of whom are in their early 20s, would learn the desired lessons with sentences more in the range of two to three years, especially if the conviction is their first. Combining much shorter sentences with incentives to get out of prison, find a career, and revamp their lives makes a whole lot more sense, economically and otherwise, than essentially treating them as human waste, giving them 10, 0r 20 year sentences, and knowing as a matter of moral certainty that after that kind of sentence, they generally have exactly no chance to find any sort of meaningful and productive life or to reintegrate themselves into society. These are not death sentences, but for a really large percentage of the offenders, they might as well be. That is not good for them, of course. But it is also not good for society as a whole.

Posted by: Grotius | Jul 23, 2010 7:23:21 PM

Before you get into how awful locking up drug offenders and minor criminals, reflect for a moment on the past. Remember when we gave these people, and murderers and rapists too, sentences of a few years at most? Remember the meteoric rise in crime rates? And then the drop in those same crime rates in the 90's after the various tough on crime measures?

Posted by: MikeinCT | Jul 23, 2010 7:47:28 PM

The official charge of the prisoner may be unrelated to the actual crime in the 95% of cases that are plea bargained. Please, do not call a felon, non-violent until you know the original crime. That is a Kissinger lie otherwise. Nor do I appreciate the intentional plan of the criminal lover lawyer to mislead the public into releasing falsely non-violent offenders, who are actually heartless, ultra-vicious predators, raised by skanky, amoral single mothers seeking welfare payments, at age 15, if they can get it by getting pregnant, and whose spawn have never heard the word, no, in their lives. Upon release, they will resume their full time Roman Orgy lifestyle, and cap with a gun held sideways, anyone who offends or criticizes them.

I recommend an old movie, Menace II Society, for a nearly documentary depiction of this life.

Posted by: Supremacy Claus | Jul 23, 2010 10:31:53 PM

Speaking of plea bargains. If 95% of cases are settled that way, shouldn't there be a module in the Crim Pro or Evidence course on the plea, its tactics, defenses, ethics?

Has anyone received formal law school training in the law and management of the plea bargain?

Posted by: Supremacy Claus | Jul 24, 2010 9:51:14 AM

We can argue whether America's penchant for over-criminalizing and harshly punishing a vast array of social and economic conduct deserves all or even much of the credit for declining crime rates. A number of smart people who study such things don't think it does.

Regardless, every day in America scores, maybe hundreds of families who've been law-abiding for generations are crushed to learn one of their loved ones faces a lengthy prison sentence for actions that seem mundane, harmless, picayune...things that once might have prompted a stern warning or a fine or lawsuit. Things the newly minted felons, like the lobster importers, often didn't even know were crimes.

That's when most people first take notice of the voracious, brutal system that evolved while they were paying attention to other things. As a result, a lot of folks who once trusted their justice system to deal fairly and evenhandedly with citizens accused of crimes no longer do.

BTW: The Economist link failed to mention that the Honduran government tried to intervene on behalf lobster-tail felons but was ignored by U.S. courts and officials.

Posted by: John K | Jul 24, 2010 9:59:49 AM

Remember when we gave these people, and murderers and rapists too, sentences of a few years at most?

Nobody is suggesting that we are treating murders and rapists too harshly. What about the lobster importer?

Posted by: Marc Shepherd | Jul 24, 2010 11:18:03 AM

The legislatures and all careless, incompetent judges should be subject to tort liability for malpractice in their practice. The lobstermen should able to sue for their sentences out of proportion to any harm they did. Crime is supposed to prevent harm. If harm has not taken place, any law or regulation is malpractice. These law makers and judges must carry insurance to make whole the victims of their carelessness.

Posted by: Supremacy Claus | Jul 24, 2010 11:46:50 AM

@Marc Shepherd

That case is a red herring and not really relevant to the article. It's only included for it's strangeness. I would have found it more credible if they'd brought up, say, a man caught with pot who got 30 years or a man who stole a sandwich and it counted as his third-strike.

Posted by: MikeinCT | Jul 24, 2010 1:02:02 PM

It's not a red herring to the families of the guys doing eight years...or to the now institutionalized and profoundly degraded inmates themselves.

Posted by: John K | Jul 24, 2010 1:46:26 PM

John K --

If the feelings of the inmates and their families told the tale, no one would be in prison for anything. Everyone has an excuse, and every crook and killer has a mother.

Posted by: Bill Otis | Jul 24, 2010 4:22:48 PM

Then I guess there is NO miscarriage of justice you'll acknowledge...no wrongful prosecution you won't defend. Sad. Scary, too (given your apparent "circuit cat" ambitions). And you accuse me of being Johnny One Note.

Posted by: John K | Jul 24, 2010 6:39:06 PM

John K --

"Then I guess there is NO miscarriage of justice you'll acknowledge...no wrongful prosecution you won't defend."

This is what happens when you guess.

In fact, I have condemned in unequivocal terms, inter alia, the anti-white, racist prosecution of three entirely innocent Duke lacrosse players by a liberal Democratic DA hoping to curry favor with an important compenent of the Democrats' voting groups. Indeed, I kind of recall condemning it in a post to you specifically.

Now to get back to what I said, and you avoided: If the feelings of the inmates and their families told the tale, no one would be in prison for anything. Do you disagree?

Posted by: Bill Otis | Jul 24, 2010 9:38:06 PM

Families' feelings are one thing when the crime is murder or rape. They're something else entirely when the offense is shipping undersized lobster tails in plastic bags.

Murderers and rapists -- and members of their families who aren't so deluded as to dismiss tangible evidence of guilt -- rest far easier in their misery than inmates and their families who feel victimized by an injustice obvious to almost everyone...with the possible exception of steadfast ex-prosecutors.

Posted by: John K | Jul 24, 2010 10:47:08 PM

John K --

The problem is not that inmates and there families feel victimized by injustice (which is infrequent but, of course, inevitable to some degree in any system).

The problem is that they feel victimized by justice. And complain relentlessly about it, including right on this blog.

Posted by: Bill Otis | Jul 24, 2010 11:49:35 PM

"Speaking of plea bargains. If 95% of cases are settled that way, shouldn't there be a module in the Crim Pro or Evidence course on the plea, its tactics, defenses, ethics?

Has anyone received formal law school training in the law and management of the plea bargain?

Posted by: Supremacy Claus | Jul 24, 2010 9:51:14 AM"

NEVER gonna happen since legally under our constitution that requires a "trial by a jury of your peers" the plea bargain is ILLEGAL ON IT'S FACE.

Posted by: rodsmith | Jul 25, 2010 1:30:06 AM

Justice is more than a synonym for punishment.

Posted by: John K | Jul 25, 2010 12:49:47 PM

Punishment is an important part of justice, a fact recognized the world over.

Posted by: Bill Otis | Jul 25, 2010 9:14:28 PM

For profit prisons and some loss of integrity in the judicial system have taken advantage of Americans for the same reason as mortgage companies, lending institutions, oil and gas industry, automotive industry, etc. have taken advantage of Americans…Greed!
Sometimes we do not understand why a defendant gets more years than someone else committing the same crime. We can blame ethnicity and many may agree, or we can blame money or the lack of money for zealous defense, or we can blame prosecutorial arrogance/greed for conviction percentages rather than justice.
Also; during indictment the grand jury may review past crimes and/or convictions of the Defendant therefore being brainwashed or coerced by the prosecutions over reaching charges. Reviewing the defendant's past is then again scrutinizes when it is time to sentence possibly influencing the judge to sentence with harsh vigor.
We constantly observe inconsistency of "Punishments" in our judiciary system.

Posted by: A. Dennis Lopez | Jul 26, 2010 12:47:02 AM

I have to concur on the irrelevance of the Lacey Act. Even when weird crimes brought and convictions result, the sentences are often short.

Yes, we incarcerate a lot of people in the United States. But, it is not because we have such odd crimes. It is because the sentences for plain vanilla crimes are much longer in the U.S. than anywhere else, particularly for drug offenses, fraud, sex offenses, pornography, and violent crimes.

For example, an international court in the Netherlands recently sentenced some pirates captured off Somolia to 5 years in prison, which was considered a stiff punishment. The mandatory minimum sentence in the United States would have been life in prison.

Posted by: ohwilleke | Jul 26, 2010 8:02:23 PM

I am the wife of one of the defendants (Re Article Economist Magazine_ Every lobster shipment that came into the United States (during the five years of my husband doing business cleared U.S. Customs and United States Food and Drug Administration . All necesaary documents required were handed in ( Bill of Lading, Country of Origin, Pro forma Invoice) I hardly see how that is smuggling? Or concealment)

My husband sold his lobster tails to Red Lobster Restaurant.

The over zealous prosecution trumped up charges based on a alleged Honduras packaging regulation because the lobsters came in clear frozen plastic bags vs a box. So therefore , all the business my husband did in Honduras was deemed "illegal" due to a bags vs box. . He received a broker commission so many cents per pound.

Even the trial Judge found money laundering charges troubling he stated in transcript " I find that difficult to understand how that's money Laundering"

National Marine Fisheries Services/NOAA listed at the time market prices or all seafood sellers and buyers alike that 2 0z 3oz and 4 oz tails were legal. But in the trial did not present their own prices sheets

The President of Honduras wrote to President Bush NO LAWS were violated, so therefore No American Law was violated.

My husband respects the law and the environment he had his CITES for en-dangered species since 1995, complied with HACCP program
"There are less costly and more effective non-criminal remedies to handle environmental infraction not eight years in jail

Posted by: Dianne Blandford | Jul 27, 2010 8:38:26 PM

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