Monday, December 31, 2012

Good Night Justice, Good Luck Reform

As Isaac Newton observed long ago, a body in motion tends to stay in motion. A corollary might be that what’s true of physical bodies is also on the Internet. And so it’s taken me longer than I originally intended to wind down this blog.

At the end of February this year, I expressed my intention do so. After 3 1/2 years, I felt the sense of a blog’s ending. Now, at year’s end, I’m making one last post before putting Piercing the Panopticon on the shelf.

The goals I set for myself have largely been achieved. In September 2010, I summarized them in a post titled simply “Why I blog.”

The foremost goal was to seek ways to resolve social conflict that point beyond the prison paradigm. Consequently, one of the recurring themes of the blog has been alternatives to incarceration. I will be seeking other platforms to pursue this further.

My other goals for the blog were much more directly achievable.

One goal was to showcase my subject matter knowledge of criminal justice by writing about topics such as mens rea, mandatory minimum sentences, and juvenile vs. adult crime. I gained this knowledge first as a law student, then later as a legislative counsel and program specialist in state government. And I intend to use it by teaching in a criminal justice program at a college or university.

I also sought to give voice to the value of prison ministry in keeping hope alive for people in prison. My active role as a board member in Prison Congregations of America continues and is also directed toward this goal. I’m seeking to engage more fully with the person of Jesus Christ — and empower others to do so as well.

Finally, I tried to have fun by enjoying writing for its own sake about topics I’m passionate about. That is why, for example, I tried to close with a flourish with a month of Harry Potter-influenced posts on criminal justice subjects. To be sure, this made for some highly idiosyncratic writing. Harry Potter and Alexis de Tocqueville are admittedly an unlikely duo.

Yet people seemed to find this blog through Web searches nonetheless. From December 15, 2008 through tonight, I wrote 346 posts and was the recipient of two guest posts from friends. For those 348 posts, there have been over 10,425 page views.

When I have identified another blog platform, I shall post a link on this one. For now, I would simply refer interested readers to my Twitter account, @areteave.

Saturday, December 29, 2012

The “Safety of the Keeps,” from Azkaban to Sing Sing

Alexis de Tocqueville’s Democracy in America is one of the most celebrated books ever written about our country. Published in two volumes, in 1835 and 1840, it is still widely read, particularly by political scientists.

The book has endured because it was a uniquely probing examination of the democratic prospect. As a liberal French aristocrat, Tocqueville sought to extract insights from the New World to understand how the ascendant values of liberty and equality would be likely to fare in the Old.

In search of such insights, Tocqueville arranged an extended visit to America. The occasion was a commission from the French government to study America’s penal system. Tocqueville and a colleague made the visit in 1831 and duly published a report the following year.

In Newjack, his account of working as a guard at New York State’s Sing Sing prison in the 1990s, journalist Ted Conover includes this quotation from Tocqueville’s prison report:

“The safety of the keeps is constantly menaced. In the presence of such dangers, avoided with such skill but with difficulty, it seems to us impossible not to fear some sort of catastrophe in the future.”

And indeed, serving as a correctional officer is still generally hard, dangerous work. That is precisely one of the reasons why Conover wanted to write about it, to give society’s underappreciated proxies a voice.

In the imaginary world of the Harry Potter books, the issue of safety for prison guards is temporarily solved through a Faustian bargain with horrible creatures known as dementors. Author J.K. Rowling depicts them as embodiments of utter despair, intent on extinguishing all hope and joy in the souls of muggles and magical folk alike.

As the tale unfolds, Harry and his friends find ways to confront the dementors by summoning happy memories and focusing the life-force contained in them. When you think about it, this isn’t merely a plot device. It’s a strategy that makes a lot of psychological sense in the real world, too.

Aside from prison guards, here is the broad thematic connection I see between Tocqueville and J.K. Rowling. Each explores themes of democracy and aristocracy against a backdrop of tumult.

For Tocqueville, the tumult was the bloody excesses of the French Revolution. These excesses informed his careful analysis of how democracy tends to operate. Rowling, by contrast, critiques the dreadful excesses of Voldemort’s fascist power grab for “purebloods.”

Sunday, December 16, 2012

Beware the Snitch!

The world “snitch” is an old synonym for “tattletale.” Webster’s New Collegiate Dictionary dates its usage to 1785.

In a legal context, however, it’s a relatively recent word. It isn’t even in the Fifth Edition of the widely used Black’s Law Dictionary, published in 1979. In that edition, only a generation old, the alphabetical listings jump from “smut” to “so” without an intervening snitch.

In the 1980s, however, the word came into much wider usage. This was principally because as America’s ill-fated “War on Drugs” escalated unimaginably, the use of informers to find (or fabricate) evidence against drug offenders became widespread. Someone who played the role of informer, usually in return for a reduction in his or her own sentence, was and is known as a snitch.

PBS explored the problem in considerable depth in a 1999 documentary called simply Snitch. The program also explored the unfairness of many mandatory minimum penalties in drug cases.

Producer Ofra Bikel’s interest in the issue was galvanized after hearing the story of an 18-year-old young man who was set up by someone he thought was a good friend. When the 18-year-old got some LSD for this “friend,” it turned out that the person was in cahoots with federal drug enforcement agents — and desperate to get a break on his own drug sentence.

To Bikel, it seemed crazy that this 18-year old with no previous convictions should suddenly be sent away for a minimum of 10 years on evidence supplied by a snitch. After all, a snitch has a tangible incentive to lie in order to catch a break from prosecutors in his or her own case.

I saw Snitch in 1999, when I was living in Des Moines and working for a special task force created by the Iowa Legislature to review criminal sentencing policy. But I hadn’t thought about it for years — until I saw the current USA Today article on snitches in the federal justice system.

The USA Today piece examines how informers in federal cases essentially buy reductions in their sentences by providing information to prosecutors about other defendants. According to USA Today, one in eight federal prisoners is engaged in this type of pay-to-snitch venture.

To be sure, in this context “pay” doesn’t mean money changing hands. But a reduction in a prison sentence for someone looking for leniency in his or her own case is definitely a powerful incentive to cooperate with authorities. And it can easily cross the line into telling them what they want to hear, regardless of the truth.

How in the world Harry Potter author J.K. Rowling came to use the word “snitch” to refer to a peculiarly elusive ball in the game of Quidditch, I do not know. Interestingly, though, in Quidditch, the snitch is pursued by two players, one on each side, who are called Seekers.

These Seekers are not searching for truth; they simply want the snitch. Analogizing to an adversarial criminal justice system, the problem is that each side has such an incentive to cherry-pick the truth. Instead of seeking the truth of the matter, prosecutors too often try to use snitches to notch another “win” in the competitive games they play.

At stake in those games is much more than victory in a Quidditch match. People’s liberty is on the line, with the prospect of spending years behind bars because a snitch made up or embellished a story about them, just to stave the snitch’s own skin.

Saturday, December 15, 2012

Probable Cause in the Wizarding World

“Odi et amo.” These short yet powerful words, from the Latin poet Catullus, can be expressed almost as succinctly in English: I love and I hate.

Catullus wrote two millennia ago. Yet such strong emotion is inevitably appealing, then and now. Small wonder that the self-promoting entertainer Cher once borrowed them to promote a concert tour.

Certainly such primal feelings are one of the key drivers of the hugely popular Harry Potter books and movies. Harry loves his friends, particularly Ron and Hermione and, later in the series, Ginny.

But he also hates his enemies: Voldemort, who killed his parents, and, on scene at Hogwarts, Severus Snape and Draco Malfoy.

Last night, I watched The Half-Blood Prince on DVD for the second time. Midway through the film, Harry, Ron, and Hermione, along with other students, are returning to Hogwarts from a visit to the nearby village. Suddenly, a student walking up ahead, Katy Bell, is swept up into the air, clearly possessed in some way.

Katy had been cursed with a spell (a form of assault) and made to carry a necklace intended to kill Prof. Dumbledore, the beloved Hogwarts headmaster. Beloved, at least, by all who truly live in the light.

The dark arts are fully unleashed, however, with Voldemort’s return. Harry Potter’s classmate Draco Malfoy is drawn, or chooses, to do the “dark lord’s” bidding.

After five years of tangles with Malfoy (and Malfoy’s father), Harry has deep-seated personal reasons to suspect Draco of committing the crime of cursing Katy. But standing before the highly rational and fair-minded Professor McGonagall and the saturnine Snape, he struggles to articulate his reasons.

McGonagall asks who could have done it. Harry blurts out that it was Malfoy. Snape challenges him to state his evidence. But Harry can reply only, “I just know.”

Even in the wizarding world, probable cause requires more than that.

Tuesday, November 27, 2012

The Grinch: A Robber Reforms

He famously stole Christmas.
And for well over 50 years,
The Grinch has carved a niche
Among America’s fondest fears.

From the Dr. Seuss original to Chuck Jones’s animated movie in the 60s to Jim Carrey’s full-length feature film, the tale of the redemption of this peculiar looking malefactor has fascinated audiences of all ages.

Tonight, as my family, flipped channels, we focused for a moment on the Chuck Jones version on ABC television. The scene we saw showed the Grinch at his seemingly irredeemable worst: taking the very last Christmas present from a tiny Who child — and blatantly lying to her about it.

Ah, but what a turn of events is his eventual transformation. The fearsome, nearly solitary creature who swooped in seeking to steal others’ tangible expressions of joy is redeemed by intangible expressions of joy.

Interestingly, for purposes of this blog, his change did not come from incarceration. It came from finding a social community whose love of life saved him from himself.

Wednesday, November 21, 2012

A Few Factoids From the Life of Jeremy Bentham

Jeremy Bentham’s remarkable life and work included much more than a sketchy design for a “panopticon” prison.

A cursory glance at Bernard Crick’s lengthy entry on Bentham in Makers of Nineteenth Century Culture* immediately yields some eye-opening facts.

To wit: Young Jeremy was 13 when he began attending Queen’s College, Oxford. And he was only 16 when he graduated. Such ages were normal for schooling at the time. Yet they seem downright strange to contemporary American sensibilities.

If he lived in our day, one suspects Bentham would be all over the scientific research on brain development among juveniles. If he were American, he would be insisting that the Supreme Court apply this research to the interpretation of cases on “juvenile lifers” and other related issues.

Consider also the glimpse Crick’s essay provides of the provenance of Bentham’s panopticon plan. The model for the panopticon, Crick says, began as a plan for cooperative settlements created not for prisoners, but for the unemployed.

Bentham worked on the panopticon idea off and on for twenty years. He was, Crick comments, a relentless perfectionist about this work, always struggling for definitive precision before considering it in finished form. It took a concerted effort by a host of followers to eventually apply and popularize it.

About Bentham’s famous donation of his skeleton to the University of London for scientific study, Crick has not a word to say. But if he had included a mention of this, I’m sure he would have included a telling detail or two.

*Makers of Nineteenth Century Culture, 1800-1914, ed. Justin Wintle (London, Boston, Melbourne and Henley: Routledge and Kegan Paul, 1982).

Sunday, November 18, 2012

When Does a Life Become No Longer Worth Saving?

A 16-year-old boy drinks alcohol, gets behind the wheel of a pickup truck and crashes. The boy survives, but a friend of his who was a passenger is killed.

How should the law respond?

An Oklahoma judge decided that the boy, now 17, deserved a break. Though the boy pleaded guilty to first-degree manslaughter, the judge sentenced him to an unusual probation arrangement. Some of the conditions are pretty standard, such as wearing a monitoring bracelet and participating in counseling.

But Judge Mike Norman, 69, also sentenced the teen to attend a church of his choosing every week. From the ABC News account, the duration of this requirement was unclear. Presumably, however, it is for 10 years, as that is the length of the deferred sentence.

Naturally a sentence like this raises constitutional eyebrows about violation of the separation of church and state. Prof. Doug Berman, for example, casually implied as much when noting the case in his sentencing law blog.

A legal challenge is not likely to be coming from the defendant, though. “I usually represent outlaws and criminals,” his attorney told a local paper. “This is a kid that made a mistake. I think he’s worth saving.”

These words are very telling — not so much for what they say about this case, but for what they imply about most of the others. For most of the others are not saved. The common pattern is for them to become enmeshed in the justice system, with the chances of getting out diminishing with each repeat offense.

Yet if a 17-year-old with an otherwise clean record is worth saving, then what about an 18-year-old? What about a 17-year-old with a few blemishes on his or her record? And so on.

Questions like this remind me of the dialog between Abraham and God presented in Genesis 18. God is poised to destroy the cities of Sodom and Gomorrah for wanton sinfulness. Abraham intercedes, arguing that is would be wrong to do so if a certain number of righteous people can be found there.

Abraham eventually gets God to agree to forego forsaking the two cities if ten righteous people can be found there. Eventually Sodom and Gomorrah met fateful ends anyway. But Judge Norman would surely approve of Abraham’s attempt to intercede.