Sunday, November 29, 2009

Mandatory Minimums: An Overdue Review

In 1980, the federal prison population was 24,000. By November 2009, it was 209,000.

To what degree was this nearly ten-fold increase due to mandatory-minimum sentences, especially for drug offenses? And what sorts of outcomes did the mandatory sentences produce? We may be getting closer to better answers to these questions.

When the Senate voted in October to expand the federal definition of hate crime, it added yet another mandatory minimum — for a crime directed at military personnel because of the person’s service. But the legislation also required the U.S. Sentencing Commission to conduct a study of the impact of mandatory-minimum sentencing.

Why wasn’t this being done all along? It surely has a lot to do with the sheer amount of money (or lack thereof) to carry out the research.

Friday, November 27, 2009

Roman Polanski: Art, Life and Extadition

The two sets of horrific murders carried out by Charles Manson and his besotted followers in August 1969 were nightmarish — yet all too real. Among the seven victims was 26-year-old actress Sharon Tate, the wife of film director Roman Polanski. She was 8 ½ months pregnant when she was stabbed to death, and the child she was carrying — posthumously named .Paul Richard Polanski — was later buried with her, in her arms.

Roman Polanski, then 35, had been in London at the time of the murders. After returning to California, he was questioned at length by police and endured a tense period of waiting before a boast to another jail inmate by Susan Atkins, a member of the Manson gang, led to the arrest of the killers.

Polanski resumed his directing career, working mostly in Europe, though in 1974 he returned to Hollywood to direct the iconic film noir Chinatown. Five years later, he directed a haunting version of Thomas Hardy’s Tess of the d’Urbervilles. According to Wikipedia, the idea for the film had come from Sharon Tate not long before her death, when she left a copy of the book and a note on Polanski’s nightstand. Tess starred Nastassja Kinski, with whom Polanski was romantically involved at the time.

Art and life entwined again in 2002, when Polanski directed The Pianist, based on the autobiography of Jewish-Polish musician Władysław Szpilman. Like Szpilman, Polanski evaded the ghetto and concentration camps while many family members perished there.

The Motion Picture Academy awarded the Oscar for best director to Polanski for The Pianist, but he did not attend the ceremony in Hollywood because he feared arrest. In 1977, he had been charged with sexually assaulting a 13-year-old girl in Los Angeles and eventually pled guilty to unlawful sexual intercourse with a minor. Before he could be sentenced, however, Polanski fled to London and then France. From then on, he was careful to live and work only in countries where he was not likely to be arrested and extradited to the United States.

One of those countries, Polanski thought, was Switzerland, where he owns a home in the resort town of Gstaad. But in September 2009, at the Zurich Film Festival, Swiss police arrested Polanski, now 76, at the request of U.S. authorities.

On November 25, a Swiss judge granted Polanski’s request to be released on $4.5 million bail until the question of his extradition to the United States is resolved. He will be on electronic monitoring, confined to his home in Gstaad. The bail decision surprised several American commentators, one of whom (Laurie Levenson) likened it to giving bail to O.J. Simpson in 1994 after the infamous Bronco chase.

Levenson’s reasoning is eminently logical: once a flight risk always a flight risk. But there are also elements that tend to distinguish the two cases. O.J. wasn’t on electronic monitoring, he wasn’t 76 years old, and he was facing murder charges, not a 32-year-old conviction for statutory rape.

As elements of tragedy swirl around Polanski’s life yet again, the law’s long arm makes for an underlying irony. In the aftermath of Sharon Tate’s murder, her mother was determined to make herself heard within the judicial system regarding the sentencing of those responsible for her daughter’s death. In the early 1980s, this played an important role in inspiring what we now know as the victims’ rights movement. And yet in continuing to pursue the case against Polanski, the California authorities may be ignoring the wishes of the victim, who is now 45 and could very well just want to move on with her life.

One other note about the case: The Huffington Post reported that after Polanski was arrested in September, an “edit war” broke out on Wikipedia, the free, reader-edited online encyclopedia. The editors had to freeze further editing of Polanski’s entry, because reader-editors could not find their way through the controversy to common ground. As empowering and informative as Wiki is, sometimes it’s necessary to have an old-fashioned editor after all.

Thursday, November 26, 2009

Mens Rea: Hate Crimes

A remarkable number of Republicans have voted against the bill to expand the federal definition of hate crimes to include those committed because of gender, sexual orientation, gender identity, or disability. Is this because they viscerally oppose anything the Democrats propose, or is there a legitimate policy difference?

In the House, the Republicans claimed that the legislation would create a new category of “thought crime” that would require problematic inquiries into the motivation of the attacker. Their leader, John Boehner of Ohio, said it this way: “The idea that we’re going to pass a law that's going to add further charges to someone based on what they may have been thinking, I think is wrong.”

Rep. Boehner’s statement borders on the nonsensical. Responding to violent crime is, and always has been, about weighing an offender’s motivation and mental state (mens rea). To be sure, this is not always easy. The crooked timber of humanity (as Kant put it) comes in many forms, and even psychologists don’t have all the answers. But making distinctions based on a factual inquiry into the offender’s mens rea is what our criminal justice system is set up to do.

Though I’m not privy to the deliberations of the Republican caucus, their use of the rhetorical term “thought crime” seems like a shameless and cynical attempt to invoke Orwell’s 1984. This isn’t about jackbooted agents of a faceless state arresting someone because brain scans have shown disloyalty to Big Brother. It’s about people who do things like torture and murder a young man just because that young man happens to be gay, as Matthew Shepherd was in Wyoming in 1998. Or people who tie a black man to a truck and drag him to death because he’s black, as James Byrd Jr. was in Texas that same year.

Hate crimes like these strike against human dignity in a way that other offenses do not. Instead of obsessing about Orwell, Republicans and others opposed to the expanded hate crimes bill would do well to consider the philosophy of Kant — specifically, the importance of showing respect for each person and the immutable characteristics that form identity.

The crooked timber of humanity will never be completely straightened in this life. But failing to recognize hate crimes for what they are leaves a rottenness at the core of society that threatens to infect the whole forest.

Tuesday, November 24, 2009

Mens Rea

"Mens rea" is Latin for mental state. I learned the term from Professor Bruce Berner at Valparaiso University School of Law in my first-year criminal law class. In the law, he taught, punishment typically depends on an actor's degree of culpability - and culpability in turn depends on an actor's mental state.

Prof. Berner was masterful in explicating the implications of this. The hypotheticals were of this type: Which would be worse?

(1) Planning to kill someone by shooting them and doing so; or
(2) Cleaning your gun while preparing for a hunting trip and handling it so carelessly that it went off and killed someone in the room

Many students would say (1), but Berner pointed out that, in important respects, the second scenario is the scarier one. At least in the first, the person knew what he or she was doing. In the second, the incompetence is so extreme that no one is really safe.

My courses with Prof. Berner were in 1984 and 1985, before mandatory minimum sentences became so prevalent. It would have been interesting to study with him in more recent years, to see how he may have attempted to integrate those into his traditional common law schema.

Monday, November 23, 2009

Watch Out For That Pothole!

It’s scarcely surprising for California’s correctional system to be hard-up for cash. Most voters are resistant to spending much money on offenders, and politicians know that. When I served as a legal counsel to the Iowa legislature in the late 90’s, I heard then-director Kip Kautzky of the Department of Corrections describe his agency’s budget request as a multi-million dollar “incursion into other needs.”

One would think, however, that California’s car culture would somehow survive the budgetary pressures. Just think of all the vintage pop songs set on those famous freeways — “Ventura Highway,” for example, by a group calling itself America (1972).

Well, that was all before Proposition 13, which limited property taxes, passed in 1978. The Golden State has been on a precipitous financial descent for years. The toll has been cumulative and relentless, like a progressive disease. Fun, fun in the sun, yes, as the Beach Boys crooned — but now financial realities are, to a great degree, metaphorically taking the T-bird away. If you have one, you can still drive it, but be prepared for a gauntlet of potholes.

NPR reported today on a study rating California as next-to-last among the states in the quality of its pavement, and dead last in road quality in urban areas. It’s not only cars that are affected, either. In San Francisco, bicycle riders’ organizations have taken to using chalk to mark out potholes in the pavement.

Is this what it’s like to live in a developing country — what used to be called, before the Cold War ended, the Third World?

Sunday, November 22, 2009

He Stayed Not For An Answer

Today is Christ the King Sunday, with the lectionary text taken from John 18: 28-38.

The leaders of the Jewish Temple have arrested Jesus and brought him before Pontius Pilate, the Roman governor, for interrogation. The charge is treason, and they are angling for the death penalty. The Jews have a certain degree of autonomy over their own religious affairs, but only the Roman occupiers have the authority to put someone to death for political insurrection.

Pilate asks Jesus point-blank whether he is the King of the Jews, an assertion the Jewish authorities claim Jesus is making. When Jesus answers that his kingdom is not of this world, Pilate repeats the question. Again Jesus refuses to provide a "gotcha" answer; he came to testify to the truth, he says, and those who belong to the truth hear his voice.

"What is truth?" Pilate famously asks. The text does not say whether Jesus replied, and if so, what he said. All we know is that, in John's account, after posing the question, Pilate went out to tell the assembled crowd he could find no case against Jesus. My father, a philosophy major, had a nice way of summarizing the dialog. "What is truth," Pilate asked - and didn't stay for an answer.

Of course, that is only one reading of the text. Another could be that Jesus did respond, but that the text does not record his answer. It's not a modern-day trial transcript, of the type we've come to know in America.

Isn't it remarkable, however, how contemporary-sounding the account John presents is? The handover to the Romans seems almost akin to what today is called "extraordinary rendition" - turning a suspect over to another government, seeking to obtain a penalty one's own laws do not permit.

The Romans were relentless in adminstering their ruthless brand of justice. Choosing the cross as the means to carry out public executions to crush and deter dissent is only the most obvious example of this. Yet in John's account, even the Romans, as hardnosed as they were, did not flog Jesus until after he is interrogated by Pilate.

Thursday, November 19, 2009

Why Protect the "Worst of the Worst"?

After 13 years on the bench, and two more before that as a court-appointed referee, Michael Fetsch, a district judge in Ramsey County (St. Paul), reached the mandatory retirement age of 70. He agreed to an interview with the Star Tribune before transitioning to senior status.

Reflecting on his background as a public defender before he became a judge, Fetsch described the judicial system’s role in protecting the constitutional rights of the accused this way:

“[B]y protecting the worst of the worst, we protect all of us.”

That is indeed the way our system is supposed to work. At the federal level, however, something went terribly wrong after 9/11. The Bush Administration indisciminately arrested and often brutally interrogated thousands, many of whom were not by any measure "the worst of the worst." Even for those who pose a genuine threat, flouting the Constitution and international human rights law was a completely counterproductive way to proceed. It has left us, as a book by David Cole and Jules Lobel is titled, Less Safe, Less Free.

How well is the Obama Administration doing, in working to close Gitmo and turn the abusive ship of state around? The Nobel committee's award of the Peace Prize to President Obama shows how hungry the world is for a chnage in America's role in the world.

Yet picking up the pieces after the Bush debacle is no easy set of tasks. The dustup yesterday in the Senate about the plan to try Khalid Shaikh Mohammed in federal court in New York is only the latest skirmish in a hard-fought course correction.

Wednesday, November 18, 2009

Unrule-ly Behavior

"Unrule-ly Behavior" is a subsection in a book called Dangerous Wonder by Michael Yaconelli, the pastor of a small church in northern California, published in 1998. Somewhere along the line, my wife, Diane, picked it up, and I’ve dipped into it occasionally − including tonight.

Here’s a question Yaconelli poses that has me pondering:

“[I]n the process of socializing our children to follow the rules, do we rob them of the discernment needed to know when to follow the rules and when to break them? Have we robbed our children (including those of us who have grown out of childhood) of the childlike intuition that caused us to know in our hearts how to recognize the Rule Maker?”

Wow! Yaconelli is surely right that following Jesus is infinitely more important than following the rules of Jesus. But how many such rules are there, really? As a philosophy professor named Howard Mueller quizzically adked a class in my freshman year at St. Olaf, how do you follow the one who followed no one?

Monday, November 9, 2009

The Coldest of Cold Monsters

Allan Megill, a historian with whom I almost studied, rightly called Friedrich Nietzsche a “prophet of extremity.” Within the torrent of over-the-top aphorisms that is Thus Spoke Zarathustra, Nietzsche included a stunning denunciation of excessive state power:

“The state is the coldest of all cold monsters. Coldly it lies, too; and this lie creeps from its mouth: “I, the state, am the people.”

(Staat heist das kaelteste aller kalten Ungeheuer. Kalt luegt es auch; und diese Luege kriecht aus seinem Munde: “Ich, her Staat, bin das Volk.”)

Nietzsche wrote these words over a century before the Berlin Wall came down. For forty years, the wall had symbolized the Cold War — then, on November 9, 1989, it was breached for good, with a sudden abruptness that had scarcely seemed possible. Twenty years have now passed since that momentous night.

One could easily cast the Stassi, the East German secret police, as the type of cold monsters whom Nietzsche so abhorred. Yet as the acclaimed film “The Lives of Others” suggested, even within the Stassi, weren't there human beings struggling to hold on to their humanity?

Wednesday, November 4, 2009

Reaction to Eric's Forgotten Fifth Entry

The model of prison ministry set forth by Prison Congregations of America is among the healthiest out there. This is not about good hearted people coming in for a revival and then leaving, even though there is a place for this kind of faith expression as well. The PCA model is the difference between the mountain-top and the plain. In prison, there are all kinds of opportunities for the mountain top experience - events with lots of music and energy and food. I remember such experiences in my own life. I remember going to Bible camp and being filled with the Spirit to the point of tears. Then I would come home and within a week some of the excitement had started to wear off - I was tumbling off of the mountain onto the plain. So it is in prison. What happens when the event is done, and the reality of prison sets in? Too often the inmates feel as though, not only have they disappointed people they loved and society in general, but they must also be a disappointment to God because they can't seem to keep the fire burning. In those post-Bible-camp-tumbling-unto-the-plain days of long ago, I found my renewal in my congregation. It was there I was reminded that the Spirit is alive and well in me and in those around me. So it is in prison IF the inmates are lucky enough to have a real denominationally organized congregation to which they belong. The PCA model is healthy and offers opportunities for inmates to build skill sets that will serve them well on the outside, for 95% of them WILL be one day on the outside. For more information about this ministry model, contact me or check out our website,

Tuesday, November 3, 2009

Dangerous Mix: Meds, Alcohol, and Childcare

There are no perfect caregivers for children. No perfect parents, no perfect grandparents, no perfect babysitters, nannies or others.

Taking care of a child is an awesome and often challenging responsibility. Some of us don’t experience it until we pull the car out of the hospital parking ramp with our first baby on board. Others take it on far earlier, perhaps as teenagers, working for a few dollars an hour. No matter what the circumstances, it’s a truly humbling experience, knowing a vulnerable person’s life is in your hands.

Infants who are only a few weeks old are among the most vulnerable — and sometimes things go horribly wrong, as happened in Lakeville, Minnesota, last May.

Tina Louise Miller-Steiner, a 46-year-old grandmother who was on medication for depression, anxiety, and hypertension, was taking care of her six-week-old grandson, Evan, in her home. Despite a doctor’s orders not to consume alcohol while on medication, she drank two martinis and some wine when Evan was in her care. Becoming drowsy, she lay down on a bed, placing Evan next to her. Tragically, when Evan’s aunt awakened Miller-Steiner, Evan was not breathing. Miller-Steiner had fallen asleep on top of him and he suffocated.

Lakeville police, who investigated the death, pushed for a manslaughter charge. They pointed out that Miller-Steiner’s blood alcohol content almost four hours after the police were called was still 0.08 percent, the threshold for driving while intoxicated.

Longtime county attorney James Backstrom, who tends toward a hard-nosed approach, was unsure about the appropriate charge. He took the rather unusual step of convening a grand jury to seek citizen input, and the grand jury indicted Miller-Steiner in August on two counts of manslaughter.

On November 2, Miller-Steiner pleaded guilty to one count of second-degree manslaughter. In return, prosecutors dropped the second count. Judge Timothy Wermager sentenced Miller-Steiner to 10 years of probation and 45 days in jail. She must also pay restitution for the cost of Evan's funeral. Her probation conditions will include remaining sober and not being allowed to take care of children under 10 without supervision.

The sentence followed an emotional courtroom scene between mother and daughter. Davina Louise Miller, Evan’s mother, asked the judge for leniency for her mother.

After the sentencing, the county attorney remarked that in a case like this, the criminal justice system can inflict no punishment harder on the offender than what has already happened. That is probably true, but I wouldn’t describe the way this case was resolved as “mercy,” as the Star Tribune reporter did. Defense attorney Joe Friedberg was closer to the mark, I think, in calling it “equitable.”