Technical Fouls

When I turned on my TV to watch Game 2 of the NBA playoff series between the Lakers and the Nuggets, jump shots were on my mind, not (correctional) jumpsuits. As the game heated up, however, a comment from television analyst Jeff Van Gundy raised an issue about how justice systems respond to technical violations.

Lakers’ superstar Kobe Bryant disagreed with a call, and Van Gundy, a former NBA coach, pointed out that Bryant needed to be careful not to get a technical foul because he already had five in the playoffs. Under NBA rules, if a player gets seven technicals in the postseason, he is suspended for one game. Given how valuable Kobe Bryant is to the Lakers, they could ill-afford for him to get two more technicals and be suspended for an entire game.

The one-game suspension awaiting a player who gets seven technical fouls in the playoffs gives NBA referees a way to respond to heated incidents in a more measured way than before. It’s no longer a matter of either throwing a player out of the game immediately or merely assessing a one or two-shot penalty. The cumulative sanction after seven technicals functions as a deterrent by integrating a player's technical foul history into a sort of structured sentencing enhancement.

During Game Four of the Laker - Nugget series, Van Gundy expressed concern that the seven technicals rule is arbitrary. Kobe Bryant had been tripped by a Denver player in a play that appeared deliberate and even downright dirty. The fact that Bryant was only two technicals short of a suspension might leave him less able to retaliate.

Loss of discretetion is a common concern when sanctions become more structured. But the NBA's response to technical fouls isn't arbitrary like the notorious California "three-strikes and you're out" rule. In this case, the question is whether what's lost in discretion is gained in the deterrent effect of a brightline rule. The NBA office seems to know how to use rules like these proactively to keep the focus on the spectacular basketball skills of the players.

Which leads me to this semi-serious question: If Senator Jim Webb’s idea for a national commission to review the criminal justice system gets off the ground, would NBA Commissioner David Stern be a good addition to the blue-ribbon panel?

Joshua DuBois Shakes Every Hand in St. Paul

Joshua DuBois looked out at the audience in the Fitzgerald Theater in downtown St. Paul and asked us to raise first one hand, then another — and move them from side to side. “I told Barak I’d shake every hand in St. Paul,” the 26-year-old director of the revamped office for faith-based programs within the White House said with a smile. His smile was contagious, and the ensuing applause was instantaneous.

It’s a good thing the energy was positive, because our national problems (and indeed world) problems are daunting. Someone whose job is to empower people to tackle them can be a real catalyst for solutions, and Mr. DuBois appears ready to play that role.

Krista Tippett, host of the public radio series “Speaking of Faith,” made sure to ask DuBois what prepared him for the job. He mentioned being a preacher’s kid (his stepfather is an AME minister in Nashville) who started finding his voice through a Pentecostal church in Cambridge while attending Boston University.

The church DuBois attended is called Calvary Praise and Worship Center, and it was the only congregation mentioned by name at the St. Paul event. As a preacher’s kid myself who is married to a Lutheran minister, I would have liked to hear more about the central role congregations play in forming religious identity and creating community.

Mr. DuBois spoke of being deeply moved as a college student by the unjust killing of Amadou Diallo, an unarmed Guinean immigrant mistakenly killed by New York City police. Though he did not tell the story himself at the St. Paul event tonight, Time magazine reported earlier this year that DuBois stood before a Martin Luther King, Jr. memorial in Boston for 41 continuous hours in response to the 41 bullets used to kill Mr. Diallo.

In the Obama administration, the office DuBois heads has identified four key priorities:

● Connecting community organizations as part of the president’s economic recovery plan
● Encouraging fathers to be active parents
● Reducing unintended pregnancies
● Engaging in interfaith dialog

The indirect implications of these goals for criminal justice are not difficult to see. It begins with economic recovery because it’s not only in Les Miserables that financial pressure can push people toward crime. Similarly, many people who become offenders have absent, neglectful or abusive fathers, and there are a lot of those in a country where something like forty percent of births are to unwed mothers. This, in turn, ties in with efforts to reduce unintended pregnancies, and so on.

Interfaith dialog may seem at first glance like a more amorphous notion, but it really isn’t. Obama understands, where Bush did not, that Christians do not have a privileged place in an America that is now highly pluralist. DuBois will help to get the word out that pluralist doesn’t mean relativist. As Americans, we need to come together around our shared values, regardless of our particular religious beliefs (or lack thereof). Obama’s office is therefore reaching out not only to faith groups, but also to secular nonprofits and neighborhood groups, such as the Boys and Girls Clubs.

The theme of dialog leading to productive action was also present in the one criminal justice topic that came up specifically in the conversation between DuBois and Tippett. Ms.Tippett suggested that Americans have become weary of the “culture wars” (abortion, guns and gays). DuBois responded by citing interfaith cooperation on ex-offender reentry as an example of transcendence of the old religious divides.

Tens of thousands of ex-offenders are released every year, often with not much more than the proverbial bus ticket to fall back on. One doesn't need to be a card-carrying Christian, or even a person of religious faith at all, to realize that they need housing, shelter, and employment. Each of us has a role to play in creating communities where those things will be available. Without them, recidivism (repeat offending) is an all-too-common outcome.

Funding the Justice System

My Minnesota attorney license fee just went up to help pay for the court system. For months, Republican Governor Tim Pawlenty — he of the “no new taxes" pledge but a thousand by-any-other-name fees — had been trying to cut the budget for an already-strapped court system. By all accounts, he initially wanted to do it by as much as ten percent.

The plot thickened, however, when the former law partner he had appointed as chief justice of the Minnesota Supreme Court strenuously opposed the proposed cuts. The battle was fully joined when the heavily Democratic legislature also opposed the governor. The result was a hard-fought donnybrook of a type surely not envisioned by Montesquieu and other Enlightenment thinkers when they speculated about the supposed advantages of separation of powers among equal branches of government.

After much gamesmanship and give and take about who would “budge on the budget,” on May 18 the legislature passed, and the governor signed, a compromise court funding plan as part of an omnibus public safety appropriations bill. Under the deal, the courts will take “only” a one percent overall funding hit, as long as they increase numerous filing fees and tack a new public defender fee on attorney licenses.

Politics is of course the art of the possible, and avoiding more drastic cuts is a relief, given the governor’s stance. But as the president of the state bar put it, it’s not as if happy days are here again. Indeed, one might well ask, as the chief state public defender did, shouldn’t the justice system be funded out of general revenue rather than users’ fees and surcharges on attorneys? It seems to undercut the ideal of equal justice when the system itself is not funded equally by all.

“Taxes are the price we pay for a civilized society,” Oliver Wendell Holmes famously said in a speech in 1904. But that was long before Grover Norquist and the self-styled Taxpayers’ League. A century later, we struggle mightily to maintain what we once took for granted.

Keeping Rural Bobbies on the Beat

When a criminal investigation took them into the countryside, Sherlock Holmes did not want Watson to be beguiled by the bucolic landscape. Crime was more insidious there, Holmes believed, because people tended to be too trusting, and of course there aren’t as many “Bobbies on the beat” (i.e., police officers on patrol) in the country as in the city.

Many small towns do not have any Bobbies at all. In rural communities that measure their population in hundreds rather than thousands, sometimes the most prudent option is to work out an arrangement with the country sheriff’s office. This requires making hard decisions about response times and the costs of employing one’s own officers. How does one balance the cost savings of not having a local police department against what may be diminished public safety when the sheriff's office is many miles away?

The difficult tradeoffs involved in rural law enforcement were recently illustrated in the small Minnesota town of Elko New Market (population around 3800), about an hour’s drive southwest of Minneapolis. In April, the city council voted 3-2 to disband the police department and rely on the Scott County Sheriff’s Office for service. Faced with a public outcry, the council reversed itself two weeks later. Though costs were a key issue for the three city councilors who initially voted to disband the force, it appears that dissatisfaction with particular police personnel was also a factor.

Such is life in the main street fish bowl. In a face-to-face community, things can get personal pretty quickly — and professionalism can easily be compromised. Think of Alaska Governor Sarah Palin’s dismissal of her state’s public safety commissioner because he refused to fire her ex-brother-in-law as a state trooper. As the Republican vice-presidential nominee, Palin tried to paint a picture of rural folk as the “real” Americans, but the truth is that people are as flawed in small towns and rural areas as they are in cities, suburbs, or exurbs.

Rural law enforcement was probably never quite like Mayberry, RFD, the 1960s TV series featuring iconic images of small-town sheriff Andy Taylor, comic deputy Barney Fife, and Otis, the genial town drunk who knew when to lock himself in for detox. Today, Mayberry might have to eliminate Barney's position for budgetary reasons, and Otis might be running a meth lab.

Graffiti, often gang-related, is a well known problem in cities, but small towns are not immune to vandalism, either. Just ask the citizens of Sleepy Eye, Minnesota, population 3500, where a statue of the beloved Peanuts’ character Linus outside the public library was recently defaced. If investigative successors to Holmes and Watson are headed for Sleepy Eye, let’s hope they are going without illusions. “Be wise as serpents, yet innocent as doves” should be the operative watchwords, no matter how many Bobbies are on the beat.