Friday, December 31, 2010

DWI in MN: 1 in 7 Drivers

The holidays are a notoriously grim time on America's roads. Too many people drink too much and then drive without giving proper thought to the logistics of getting home safely.

Law enforcement agencies and safety advocates such as Mothers Against Drunk Driving try their best to respond to the challenge. Here in Minnesota, MADD is teaming up with the Department of Public Safety's Office of Traffic Safety and the State Patrol as part of a national effort called Tie One on for Safety. Members of the public are encouraged to tie red ribbons to their vehicles to signify a commitment to safe, sober, buckled-up driving.

The statistics cited in the Star Tribune news item announcing the annual campaign speak of a culture with a drinking problem. In Minnesota alone, there were 3,931 alcohol-related crashes last year. These crashes killed 141 people and injured 2,592.

Of course, the problem isn't only alcohol; it also includes other drugs. The I in DWI stands, after all, for impaired, and drivers can be impaired by drugs as well as alcohol. Sometimes, sadly, they are impaired by both.

It's pretty scary to consider how many impaired drivers are out on the roads - not just at the holidays, but throughout the year. One in seven Minnesota drivers has a DWI conviction.

1 in 7!

Wednesday, December 29, 2010

Rebelious Youth DID Exist in Sanitized Switzerland

Rebelious youth in Switzerland?

Yes, they existed, as they always have. From the 1880s to the 1980s, however, Swiss authorities were lightning quick to incarcerate them. The prextext was "education," and the imprisonment included a fat fee charged to the family - like it or not.

NPR reported today on the widespread practice in Switzerland - for a full century - of jailing juveniles with any sort of issues. The youth were held indefinitely in adult prisons or labor camps, alongside the worst adult offenders. The Swiss cantons not only got sanitized streets out of the deal; they got cheap labor for logging and other work camp activities.

A shameful era in Swiss history, now being brought, belatedly but devastingly, to light.

Wednesday, December 22, 2010

Criticism

Rereading Real Presences, George Steiner's probing essay into the metaphysical underpinning of aesthetic expression, reminded me why I'm doing this blog.

"All serious art, music and literature," Steiner wrote in 1989, "is a critical act." It is critical because it makes a statement that runs counter to the usual way of the world. Art offers a critique of life; "it says that things might be (have been, shall be) different."

So true! American incarceration rates have not always been so stratospherically high. They will probably not be so high in the future. They certainly do not have to be so high. They should be lower because, as Senator Jim Webb says, we are not such an evil people that we need to keep over two million of our fellow citizens in jail or prison at a given time.

If, then, incarceration rates should be lower, what should they be? And how do we get from here to there? To my mind, the answer that could be taken from the title of an old REM song - Can't Get There From Here - simply will not do.

Tuesday, December 21, 2010

The U.S. Goes After a Child Soldier

American troops arrested Omar Khadr, a fifteen-year-old boy from Canada, in Afghanistan in 2002. The allegation was that he threw a grenade that killed Christoph Speer, a U.S. medic.

The military held Khadr in prison at Guanantamo Bay for over eight years. He was the youngest detainee. But he was held so long that by the time he stood trial in a military commission, the boy had become a man.

Khadr continued to protest his innocence, claiming that he did not throw the grenade. His attorneys prevailed upon him to accept a plea bargain, however, telling him that the military officers were likely to convict him - with a likely sentence of life in prison.

The sentencing panel was not told of the plea agreement, which purported to cap the length of the sentence at eight years. Instead, the panel deliberated nearly nine hours before sentencing Khadr to 40 years. After one more year in U.S. custody he will have the right to petition to be returned to Canada.

Such a return could potentially result in an incongruous gap between the symbolic and the real, depending on how Canada chooses to treat the American sentence. A murky end to a troubling case that could have used more "truth in sentencing."

Tuesday, December 14, 2010

C. Cuomo Plays 'Gotcha" at a Pill Mill

Nightline reported tonight on “pill mills,” in which unscrupulous clinics allow unsupervised staff to sell mass quantities of heavy-duty painkillers and other prescription drugs to anyone who can pay and is willing to fake a semi-plausible story of medical need.

The director of the Texas Medical Board calls this crime, not medicine. And the dubious outlets have lead to numerous deaths by overdose in the last three years.

Nightline reporter Chris Cuomo, the brother of New York’s new governor, went to one such clinic to confront the operators with their nefarious ways. In a classic investigative journalism gesture, Cuomo knocked on the clinic door, ready to pounce. The trope is, I believe, called “gotcha.”



The respondent who opened the door initially responded that anyone who did what Cuomo alleged should go to prison, should to jail. (The terms were used interchangeably, as they so often are in American parlance.)

Then he closed the door, leaving Cuomo to spin the story.

Wednesday, December 8, 2010

Posthumous Pardon for Jim Morrison?

Charlie Crist, the soon-to-be-former governor of Florida, is considering a posthumous pardon for the late rock star Jim Morrison. Morrison was convicted of indecent exposure after a chaotic concert in Miami forty years ago. He died the following year, in the most famous Parisian bathtub this side of Marat.

The decision is not Crist’s to make unilaterally. Two other members of the state’s clemency board must sign off. According to the New York Times, that seems likely.

Why are governors and presidents typically so parsimonious with pardons until their administrations are practically over? Exoneration would mean more if its executive sponsor were willing to face the political consequences, as Gerald Ford did in 1976 for his pardon of Richard Nixon.

Or maybe there are enough old fans of the Doors living in Florida that it might actually have helped Crist politically to have thrown this olive branch to Jim Morrison’s legacy?

Monday, December 6, 2010

Newjack Numbers

When Ted Conover guarded Sing Sing over a decade ago, the total population of New York's sprawling prison system was over 70,000. In an early chapter of his book Newjack, Conover cites this figure and notes the six-fold increase from the 12,5000 that the system held 25 years before.

Data from the Bureau of Justice statistics confirms the figure of 70,000. According to the BJS, New York State's prison population was 70,199 at the end of 2000, the year Conover's book was published.

What is it today? Though year-end figures are not yet available for 2010, BJS counted 58,687 prisoners at the end of 2009. So the total has gone down since Conover's time, by an average of about two percent per year. The figure remains quite high, however, in historical terms, at over four times what it was in the 1970s.

Could it be that our society is turning the Titanic around? Several states are feverishly trying to do just that before the oceans of red ink wash over them.

Thursday, December 2, 2010

Terminal Litigation on California Prison Crowding

Does a federal court have the authority to order a large-scale release of prisoners in a state prison system? “Large-scale,” in the case from California now before the Supreme Court, means upwards of 46,000 inmates.

In the abstract, it seems like a breathtaking extension of federal power. But the question can be posed in a more specific way: Does a federal court have the authority to direct a state to grant early parole to relieve overcrowding so severe that it poses drastic risks to the health and safety of inmates and the state has systematically refused to build additional facilities?

The question was argued in the Supreme Court this week. The SCOTUS blog – a remarkable resource for the Internet age – has comprehensive coverage.

Litigation over California's overcrowded prisons has been playing out in the courts for years. It's been like Bleak House meets the Big House.

And as with any long-running series, sometimes the cast has to change. Arnold Schwarzenegger may have played the role of The Terminator in his movie career, but he won't be ending this messy saga. Jerry Brown won the election last month and will be replacing Arnold in the governor's chair, Whatever the outcome in the Supreme Court, Schwarzenegger v. Plata will be in need of a new caption.

Monday, November 29, 2010

The Open Society Becomes Its Own Enemy

“His crimes are legion,” Joseph diGenova, a former federal prosecutor, told Nightline about Bradley Manning, the 22-year-old Army private suspected of leaking an amazing array of diplomatic cables to the website Wikileaks.

Those leaks have blanketed the news today. NPR reported on Arab leaders calling in private for armed U.S. intervention to take out the Iranian nuclear program. The BBC spent considerable time on the Chinese response to North Korea’s nuclear efforts. As diGenova said, the source of the Chinese leaks may have been someone in the Politburo itself — and that person is likely to end up dead, once the Chinese identify who it was.

Manning has been in a military brig in Quantico, Va., since July. He is being held on charges that he disclosed a classified military video of an attack in Iraq that killed two Reuters journalists. Based on today’s revelations, the list of charges seems destined to mushroom soon.

Manning may have been a bad egg, but he exploited something rotten in the state of post-9/11 intelligence. Following the terrorist attacks of September 11, 2001, the U.S. initiated reforms aimed at making it easier for intelligence analysts in various agencies to share information. The intention was to empower the relevant players to “connect the dots” and stop future attacks.

What happened, however, was the creation of a poorly supervised information commons open to far too many people. According to diGenova, the figure is an astounding 600,000.

When Karl Popper wrote The Open Society and Its Enemies a half century ago, he could not have imagined this.

Friday, November 26, 2010

On The Wane At Last, After a 30-Year Epidemic?

A staggering 30-year-long increase that may finally be abating.

The American prison population?

Perhaps. But in this case, I was referring to the AIDS epidemic.

Tuesday, November 23, 2010

Corrections Cornucopia

Thanksgiving is supposed to be a celebration of American bounty.

Yet for many, just getting enough food to get by is a daily challenge. Just ask Kevin Winge, the director of a local nonprofit agency here in the Twin Cities, Open Arms Minnesota. He is attempting to live this week solely on the amount that is available from federal food stamps. Minnesota Public Radio broadcast an interview with him that I happened to hear on my afternoon commute.

Getting enough healthy food on $27.65 a week is challenging to say the least. As Open Arms points out, that is about the equivalent each day of a single latte.

Food for thought for the rest of us, how little this is. Still, when I got home I had a nice dinner and temporarily put the food security story out of my mind. After eating my fill, I started scrolling through Doug Berman's remarkable sentencing blog. Going back a few days, I spotted this recent post on a Chicago Tribune op/ed piece proposing a very creative sentencing alternative: community service to help plant, grow, harvest and distribute locally-produced food for the poor.

This is not just an outside-the-box thought; it is potentially a corrections cornucopia.

Wednesday, November 17, 2010

Returning Citizens Should Be Allowed to Vote

This is a follow-up post to the one I wrote on the night of the midterm elections.

In that post, I probed the common law origins of the disenfranchisement of felons. The practice of stripping people of the right to vote as an additional consequence for committing a felony, I argued, does not really make sense in a democracy.

Tonight, I discovered tonight that my views are in alignment with the conservative Chicago Tribune columnist Stephen Chapman and the Sentencing Project, a progressive research and advocacy group.

Chapman's column last week praised the work of the Sentencing Project in encouraging states to amend their laws to promote greater civic participation by convicted felons. Twenty-three states have done so since 1997, with voting rights restored to about 800,000 people. Two of these states - Maine and Vermont - allow people who are still in prison serving their sentences to vote.

In short, a convict can still be a citizen. But the degree of citizenship extended is still jurisdiction-specific; it depends on the state you're in.

Monday, November 15, 2010

Aung San Suu Kyi Emerges From House Arrest - Again

After seven years of house arrest by order of the Burmese junta, pro-democracy leader Aung San Suu Kyi is finally free to travel again. In all, she has been detained under various forms of house arrest for 15 of the last 21 years. During much of that time, her only company was visits from housekeepers and the Burmese equivalent of a probation officer.

Yet the Nobel Peace Prize winner told the BBC in an in-depth interview that, even when confined to her home for so long, she always felt free. She acknowledged that the extended detention called upon her "inner resources." but Aung San Suu Kyi kept the focus on others throughout the interview.

She spoke, for example, of how the house arrest separated her from her family. Her husband died abroad, after being denied a visa to return to Burma. Her protracted detentions by the junta also kept Aung San Suu Kyi apart from her two sons. She recognized her family's suffering, and the suffering of her political supporters, but expressed no pity for herself. Instead, she kept the focus on her own moral choices.

A prisoner of conscience par excellence.

Saturday, November 13, 2010

What's in a Name?

Using preposterously high quantity to express the unquantifiable, the singer Bruce Cockburn once wrote a song referring to "the nine billion names of God."

Even when taking poetic license similar to Cockburn's, there are not nearly that many names for "correctional facility." But there are still quite a few, and the nuances are important.

Jail and prison, of course, are still standard terms. They are often wrongly used interchangably, when in fact the terms refer to qualitatively different types of facilities.

Jails are usually operated at the local (county) level and confine people who come from a number of different statuses. One type is convicted offenders whose sentences are for less than one year. But jail populations also often include many other people. Some are waiting for trial, while others are being confined for civil contempt or even non-payment of debts. Still others have been arrested but not yet charged.

Prison, in America, has historically been a place where convicted offenders serving sentences of a year or more are sent. Each state has at least one, and the federal government operates it own system in addition to the state systems.

Traditionally, there was more programming (substance abuse treatment, sex offender treatment, and so on) in prison than in jail. This was because the shorter length of stay in jail did not lend itself as well to successful programming. Today, however, with budgets cuts eroding prison programming, the difference that formerly existed between jail and prison regarding the extent of programming is eroding as well.

In an earlier era of corrections, the operative words were not jail or prison, but penitentiary or reformatory. These names, with their religious origins, pointed to the rehabilitative goal that once animated American corrections. Each person, the thought was, should use the incarceration time to reflect on his or her errors and work to expiate and reform them, in order to become a socially responsible self once again.

In the last few decades, the rehabilitative idea has been in decline and punishment as the primary purpose of incarceration has been ascendant. The term "correctional facility" is therefore the signature one of our time, expressing a sort of bureaucratic indifference to the outcome of what occurs within the walls.

One example of this was related to me by my colleague Gloria, with whom I serve on the board of Prison Congregations of America. Gloria tells the story of how, while serving a sentence at the South Dakota State Penitentiary, she and the other inmates woke up one morning to find that the new governor had changed the name. It was no longer a penitentiary; it was a "correctional facility."

But the generic term "correctional facility," and the commonly used "jail" and "prison," cannot completely displace the many other terms that are in use, either historically or in specific communities.

In the nineteenth century, Oscar Wilde wrote a poem about being confined to "gaol" - an old word that is etymologically related to jail.

The word "prison" has a host of synonyms, such as "the big house."

The children's novelist Lemony Snicket used the word "brig" in one of his novels and defined it as "an official nautical term for jail."

Star Trek fans know that even in the 23rd century, the Starship Enterprise had a brig for detention purposes. Give Trek creator Gene Rodenberry credit there for a realistic appraisal of the human condition. As much as I have decried excessive incarceration in this blog, I do not suggest that human society can or should try to go without it.

Saturday, November 6, 2010

Keeping Hope Alive on Oklahoma's Death Row

Death row is an inscrutable place. How does one fathom what it's like for someone sentenced there, confined to a cell 23 hours a day while legal appeals drag on year after year?

When I read the New York Times account of James Fisher's 27-year stay on Oklahoma's death row, it was initially because of the novel resolution to the case: banishment from the state.

Fisher, who is African-American, had been tried twice and convicted twice of fatally stabbing a white man in the neck with a broken wine bottle in December 1982, at age 20. Prosecutors depicted it as a case of homosexual sex-for-hire gone wrong.

Both trials were overturned by the courts, however, due to ineffective assistance of counsel. Fisher's first lawyer actively undermined his client's case at times, apparently because of anti-gay bias. The second lawyer, at Fisher's retrial in 2005, was struggling with cocaine addiction and performed no better than the first. The second lawyer even physically threatened his client, causing Fisher to stay away from his own trial.

The Sixth Amendment requires more than this, and a non-profit group called the Equal Justice Initiative took up Fisher's case to make that constitutional right a reality.

But the state of Oklahoma was not done with Fisher, and a third trial loomed. Plea negotiations yielded a new-old remedy: exile. Fisher pleaded guilty to first-degree murder and was released to a re-entry program in Alabama, on the condition that he never return to Oklahoma.

This is a gripping story that continues to unfold as Fisher faces life on the outside after a generation on the inside. I-pods and MP3s instead of Walkmans are only one of the many changes he will encounter.

Thankfully, Fisher found a way to cope emotionally on death row, despite the cave-like setting in which he was continually disciplined for keeping his hands for too long on the meal-tray slot. He kept a pet mouse with him on the block, and that small tenderness helped him to keep hope alive.

.

Tuesday, November 2, 2010

Felonies, Voting, and the Weight of History

American states are — literally and figuratively — all over the map on the issue of whether convicted felons should be permitted to vote.

Many states bar all convicted felons from voting, even after release from prison. Other states allow released felons to vote, as long as the sentence has been completed (sometimes called “discharged”).

What the law is on voting by ex-felons, and how it is enforced, raises a set of weighty issues about power, privilege, and political expediency.

For me, Exhibit A illustrating the power dynamics involved in disenfranchising felons is still the disputed Florida vote in the 2000 presidential election. State officials initiated an ill-fated effort to supposedly “cleanse” the Florida voter rolls of convicted felons. Unfortunately, the process was riddled with errors, resulting in hundreds and perhaps thousands of legitimate voters being removed from the rolls.

More recently, in Minnesota last summer, a political action group with ties to the Republican party tried to claim that voter fraud involving felons occurred in the 2008 Minnesota Senate race. The claims never got any traction from reputable observers, much less the secretary of state.

So where does this notion come from, that being convicted of a felony should have collateral consequences affecting the future exercise of the offender's civil rights?

The answer goes deep into the early common law. Back then, in feudal England, a felony was an offense for which conviction meant the death penalty, as well as forfeiture of personal property and escheat of land to the felon’s lord.

That’s right, the felon’s lord. The feudal language is jarring to modern American ears, but this is where our conceptions of “felony” have their origin.

The escheat of land did not occur immediately. According to Black’s Law Dictionary, the land first spent a year and a day in the possession of the king.

If the one-year-or-more duration sounds familiar, it should. Even today, most American jurisdictions mark the difference between a felony and a misdemeanor — or between jail and prison — as whether the sentence is over or under a year.

Sunday, October 31, 2010

Freakanonomics in Multiple Formats

Roe v. Wade, the U.S. Supreme Court decision that legalized abortion, is one of the most controversial court decisions ever.

Critics blame it for allowing the termination of untold pregnancies - arguably through acts of homicide. Many other people believe Roe rightly allows for the decision on whether a woman should carry a pregancy to be made by the woman, her doctor and perhaps her partner (if she has one).

The divergence between these positions has created a generation-old fissure in the American body politic. And that divide, in turn, has contributed greatly to a virulent political dysfunction along partisan lines that has infected our common life like a cancer.

So Roe is fraught with the weight of history and the trauma that comes from spilled blood.

But do its effects also include a role in reducing the crime rate? Two economists, John Donohue and Steven Levitt, explored that question in a 2001 paper. Levitt teamed up with journalist Stephen Dubner to popularize it in the widely discussed book Freakonomics, published in 2005.

The idea is that legalized abortion in the U.S., starting in 1973, helped bring the crime rate down in the 1990s by engaging in the ultimate in incapacitation: preventing the birth of many babies from disadvantaged social circumstances who would have turned to crime upon growing up.



Not having delved into the data Levitt points to, I cannot really assess the theory in this post. I do know, however, that Freakonomics as a publishing phenomenon is going strong. The book led to a New York Times blog and now a movie. Covering the media bases, there is also a radio and podcast partnership with American Public Media.

Freakanomics, coming soon to a media format near you.

Monday, October 25, 2010

Sting Sets Sail for Valparaiso

Valparaiso University School of Law, a highly respectable midwestern law school, and Sting, the rock n' roll god.

Not a common combination, to be sure. But I can bridge the two.

In 1985-86, during my third year at said school, I walked over to a theater from my apartment on Cumberland Avenue, on the north end of Valparaiso. The movie flick I saw featured Sting as Dr. Frankenstein opposite Jennifer Beals (she of Flashdance fame) in a mostly forgettable version of the Mary Shelley tale.

The twist on the familiar story turend on gender. Sting's mad, passionate doctor was intent not on creating a Boris Karloff-life male, but, as IMBD puts it, "the perfect woman" - Eva. Update your Netflix queue if you are curious to know how that quixotic project turned out.

Right now, however, listen to Sting sing of Valparaiso (Chile, that is):

Friday, October 22, 2010

Fly a Kite

When Julie Andrews sang “Let’s Go Fly a Kite” in Mary Poppins, she wasn’t referring to communication within prison.

Ms. Poppins may have been an unconventional nanny. But her usage of the word “”kite” was firmly within the dictionary definition: “a lightweight framework of wood and paper designed to fly in a steady breeze.”

In prison, the meaning is rather different. In prison, a kite is a formal means of communicating with the institutional authorities. How the word came to be used for this, I do not yet know.

Prison Congregation of America, on whose board I serve, has adopted the kite as one of the key symbols of the organization. When I wear a kite pin, it is to remember those in prison (Hebrews 13:3).

Sunday, October 17, 2010

Goodell, von Ranke, and Factual Bedrock

Roger Goodell, the pragmatic, business-savvy commissioner of the National Football League, would seem to have little in common with Leopold von Ranke, the staid nineteenth-century German historian.

Goodell spends his days managing the cash cow that is the NFL. Like his counterpart David Stern in the NBA, the commish is ever-alert to minimizing scandals involving star players. If such scandals spin out of control, the league's brand could become tarnished and the line of ready and willing advertisers for TV commercials start to diminish.

Ranke, by contrast, was a German professor who did his work far from the media limelight, in another place and time. Over 150 years ago, he was a key figure in pioneering the professionalization of history as an academic discipline that insists on the use of original documents. Using authentic sources, his goal was to recreate the past "wie as eigentlich gewesen."

Interpretations differ on how to properly translate this German phrase. One view is that Ranke meant historians are to draw upon archival research to present the past as it actually was. Others suggest that the word "eigentlich" is a type of linguistic flavoring particle, and that Ranke did not claim that a historian can truly conjure up the past in all its teeming complexity, no matter how close the research stays to the original sources.

No matter how one interprets the phrase "wie es eigentlich gewesen," however, it seems clear that Roger Goodell's announced goals in the investigation of a possible sex scandal involving legendary quarterback Brett Favre are Rankean in nature. While playing for the New York Jets in 2008, Favre may have sent inappropriate text messages and provocative photos to a sexy sideline reporter named Jenn Sterger.

Favre has moved on to the Minnesota Vikings, where, at 41, he is once again the center of attention for legions of football fans. Sterger, 26, has moved on from the Jets as well, and now has her own spot on a sports-themed cable channel.

Meanwhile, allegations about Favre's (supposed) attempts to seduce Sterger have spilled out into the print media, after first circulating online. Commissioner Goodell has acknowledged that an investigation is underway, and Favre, like Pittsburgh's Ben Roethlisberger before him, could face a fine or suspension for violating the NFL's personal conduct policy.

I applaud Goodell for undertaking a thorough investigation. He sounded downright Rankean in his statement of intent: "We want to make sure that we understand exactly what happened." Serious allegations require serious fact-checking, so the commissioner's deliberation is far preferable to a tabloid rush to judgment or an old-school stonewalling denial.

Yet there is also a certain amount of epistemological naivete - or dis-in-jenn-uousness (bad pun there) - in the premise of Goodell's statement. From Kurosawa's famous film Rashomon to the controversial Clarence Thomas / Anita Hill theatrics at Thomas' Supreme Court confirmation hearing, it is not difficult to find examples of how challenging it can be to get at the whole truth.

This is not to say that truth always eludes us, and that all accounts are relative. As a historian and as a lawyer, I have no doubt that, even amid dueling accusations and interpretations, there is a factual bedrock.

In the case of Favre and Sterger, getting to that bedrock will involve a lot more than interviewing the two principals. The NFL had better get the cell-phone records, so that faithful football fans are not left relying on You Tube, trying to figure out what's going on.

Thursday, October 14, 2010

New York State Tries Another Commission

Sentencing commissions come in all shapes and sizes. Some have enduring impact and become an integral part of the criminal justice system in a given jurisdiction. Others fail to find a foothold, issue a few recommendations, and fade away.

New York State is somewhat hard to categorize on this continuum. The state has already had the kind of commission that goes away. Former Gov. Elliot Spitzer appointed a study commission in March 2007, which duly issued a detailed report with many recommendations in 2009.

Now the state is trying to revive some of those ideas again. The harsh Rockefeller drug laws of 40 years ago, with many lengthy mandatory minimum sentences, remain largely in place. At the same time, with a host of other offenses, the problem is not rigidity but uncertainty. The interdeterminate sentencing ranges for numerous offenses lead to a lack of transparency in sentencing.

With these disparate elements, the sentencing system is complicated, confusing, and downright confounding. In one word, a mess.

Enter Manhattan District Attorney Cyrus Vance, Jr., and Judge Barry Kamins, the Administrative Judge of State Supreme Court, Kings County, Criminal Term. They will be the co-chairs of a new reform commission. Striving for greater impact than its predecessor, this commission will carry the word Permanent right there in its name: The New York State Permanent Sentencing Commission.

When you call something permanent, is that because you're serious about it? Or is it really more like wishful thinking?

Sunday, October 10, 2010

Release From Rampant Incarceration

As a late-wave Baby Boomer, when I think of a cover of Bob Dylan's I Shall Be Released, I think of The Band.

Tonight, I'm adding another band, to go along with The Band.

Wilco.



Viewing the song through the prism of this blog, I was particularly struck by these words:

I see my light come shining
From the west unto the east
Any day now, any day now
I shall be released


The imagery of the sun setting in the West and rising in the East points to the way historical events often play out in cycles. Could it be that American sentencing policy, which has been so harsh for so long, is poised for a swing of the pendulum toward a more balanced approach? An approach more like the rest of the world - or at least the America of 30 years ago.

Maybe I'm naive, but I second the sentiment of Dylan's song. Release from the ideological blinders that brought us here could happen any day now. In fact, publication by the respected journal Daedalus of an entire issue on the subject of mass incarceration suggests that day may indeed be dawning.

A Shot Rang Out in the Memphis Sky

Switching on the car radio while running an errand, I happened to hear Pride in the Name of Love, U-2's stirring song about Martin Luther King Jr.

Early morning, April 4
Shot rings out in the Memphis sky
Free at last, they took your life
They could not take your pride


When Bono sang these lines, it reminded me of a conversation I'd had with Chris Hunt, a Minneapolis attorney with whom I serve on the Twin Cities area alumni/ae council for Valparaiso University School of Law Twin. Last spring, Chris happened to mention to me that he and his family had been in Memphis on a spring break trip at the time of MLK's assassination.

With the attention to detail you'd expect of a successful lawyer, Chris commented that the U-2 song contains a clear factual error. The shots did not ring out early in the morning, as Bono's song suggests, but at 6:01 p.m.

Why Bono's song contains this obvious factual error, I do not know. He could have written "not yet twilight, April 4," but he didn't.

Still, the song's power remains undeniable, a generation after it was written. Listen:

Thursday, October 7, 2010

American Football, American Incarceration

To the rest of the world, football is soccer. Why American football is called football here, when kicking the ball is actually an unusual occurrence, is I suppose a question for historians of the game.

My interest at present is to throw out a totally speculative theory that may help explain the outlier status America occupies internationally in the size of its prison population. In case you didn't know, ours is gargantuan, unlike any other country in the developed world.

Could it be that our passion for the violent game of American football, with its frequent, terrible injuries, has something to do with the ideology of inflicting pain on so many millions of people through (in my view) excessive incarceration?

In other words, does one type of American exceptionalism (quasi-religious devotion to American football) contribute to another (off-the-charts incarceration that makes us a nation of jailers)?

This question crystallized in my mind when I happened to read that Philadelphia Eagles' quarterback Michael Vick was knocked out of last Sunday’s game with an injury – and wasn’t the only QB to have suffered this fate. In the St. Paul Pioneer Press, right next to the Vick story (“Eagles lose Vick to injured rib, chest”) was the account of the Chicago Bears’ Jay Cutler going down as well. “Giants KO Cutler, bully Bears,” was the boxing-speak headline about that football game.

What triggered my speculation, I think, was that Vick only recently returned to the NFL after serving 21 months in federal prison for animal cruelty. He had gotten the starting job for the Washington game because the quarterback who opened the season for the Eagles had – you guessed it – been injured.

We live in a culture swathed in superfluous violence. Why should we be surprised that incarceration rates are astronomical? Or that the death penalty lingers on in most of the states, like a specter haunting the Land of the Free and the Home of the Brave?

Monday, September 27, 2010

Castaway - Into Solitary

The time-obsessed character played by Tom Hanks in Castaway became disconsolate when stranded alone on a lush Pacific island, dappled in sea breezes and swaying fronds.

So why, then, do we expect American inmates to make it in solitary confinement for extended periods of time, without becoming mentally inhinged?

Saturday, September 25, 2010

Why I Blog

Andrew Sullivan, the former New Republic editor-turned blogger, once wrote an essay entitled "Why I Blog." I read it in The Atlantic Monthly a year or so ago.

Tonight, those three words - why I blog - popped into my head in a rather unexpected setting: deep in the prolix text of Hermann Hesse's strange novel The Glass Bead Game, first published in 1943.

The protagonist, Joseph Knecht, who has risen to be the head of a quasi-monastic order of cultural elites, is concerned about the tendency of many in the order to avoid engagement with the messy, conflict-prone realities of history. He offers the following statement as a counterweight to those who would retreat from the world in order to keep themselves pure.

"No noble and exalted life exists without knowledge of devils and demons, and without continual struggle against them."

Plenty of devils and demons have populated the pages of this blog during its 21-month existence. And they will likely continue to do so. Just today, I heard tell of a 2-year-old toddler killed by an 11-year-old babysitter in Georgia; a woman whose intelligence bordered on mental retardation executed in Virginia; documented cases of prosecutorial misconduct in Iowa; and on down the line.

Angels and demons was a Dan Brown novel - a voyeuristic fantasy. The devils and demons above are all too real, and they are only the tip of the iceberg in a world crying out in pain.

My struggle against such demons is not of the flesh, but of the spirit. I'm not a police officer, a corrections officer, a probation officer, or any of the other first-line reponders. I'm merely a commentator. But I strive, in my own way, to reorient the intellectual structure of the debate in America about what criminal justice policies we should employ.

More specifically, I aim to make not solely a religious case, but also a practical one, for America to free itself from the ideological blinders that have warped our policies in recent years. Of course, this will not be easy. Yet one must try. To quote Spinoza, beautiful things are as difficult as they are rare.

Tuesday, September 21, 2010

Pot, Booze, and Caifornia's Prop. 19

California voters will decide in November whether personal use of marijuana should be legal.

In my previous post, I referred to a film called Saving Grace, in which a character asks a simple question: Does the fact that alcohol is mostly legal but marijuana is mostly not have more to do with the accidents of history than any qualitiative difference in the relative experiences of intoxication offered by the two drugs?

The debate over Proposition 19 in California provides an instructive case in point. Prop 19 would legalize marijuana possession for personal use. Fearing the competition from pot, distributors of booze have made substantial financial contributions to oppose it.

As the blogger Scott Greenfield points out in his post in Simple Justice, the self-interested motivation of such contributions is crystal clear. With only so many dollars-chasing-intoxicants to go around, purveyors of licquor stand to lose by the legalization of cannabis consumption.

Wednesday, September 15, 2010

Stirring the Pot

Is the fact that alcohol is mostly legal and marijuana is mostly not merely an accident of history that has relatively little to do with the actual effects of each drug?

The amusing English comedy, Saving Grace, poses this question in lighthearted cinematic form, leavened with heavy doses of whimsy and featuring some rather remarkable displays of marijuana plants. The filmmakers stir the pot - pun totally intended - with quirky Cornish characters, dubious London drug dealers, and a sure-fire performance by Brenda Blethyn as a widow left deep in debt by her late husband's fraud.



The question at hand is what will happen when the widow turns to large-scale cannabis cultivation, hoping to get herself out of the financial quagmire. The widow's name is Grace, but the film doesn't really explore the theological implications of the word. Maybe the filmmakers thought calling her Mary Jane would be too bad of a pun.

Saturday, September 11, 2010

Glenn Loury, the Town Crier

How did America's astonishingly large increase in incarceration happen? By any empirical measure, the U.S. is a wide outlier in imprisonment rates not only compared to the rest of the world, but compared to our own past. The rate has exploded in the last 40 years, from 100 per 100,000 of the population to nearly 700 per 100,000 today.

And why has this not gotten more attention? To me, it's been the elephant in the room in America since the end of the Cold War. But the economy was so strong that the governing powers could pay for the prisons - and they did, creating a huge industry. Eisenhower famously warned of the military industrial complex. Who could have forseen then that dealing with a prison industrial complex would become an equally daunting challenge?

Finally, however, the wall of silence around the incarceration escalation is starting to crack. In 1999, the conservative scholar John J. Dilulion opined in the Wall Street Journal that 2 million prisoners was enough. Two years later, in The Culture of Crime Control, David Garland described the spread of ever-wider coercion exercised through the correctional system.

More recently, Glenn Loury, a sociologist at Brown University, has taken up the role of - in his words - town crier, warning of the dangers to our society of mass incarceration.

The sheer numbers numbers are huge - 2.3 million in jail or prison on a given day, and nearly another 5 million on probation or parole. So it absolutely is, in the term used in the current issue of Daedalus, mass incarceration.



And yet, as Loury remarked to the privileged, predominantly white kids he teaches at Brown, it is also not really mass incarceration in the sense that it affects everyone equally. It is hyperincarceration of certain elemoents of the population, particularly racial minorities.

Sunday, September 5, 2010

Judge Rosenbaum and the Guidelines Dust-Up

As James Rosenbaum's tenture as chief U.S. district judge in Minnesota wound down, the Star Tribune lavished considerable attention on the respected jurist. A glowing article in June 2008 lauded his wit and wisdom. A little over two years later, in August 2010, with his retirement near, the Strib sent the judge on his way to private practice with abundant praise for his Renaissance man qualities.

In the August 2010 piece, a prominent Twin Cities criminal defense attorney named Joe Friedberg recounted a story about the way Rosenbaum handled the sentencing of a defendant who was facing 121 to 141 months under the federal sentencing guidelines. Rosenbaum gave Friedberg's client an even ten years. "The last thing a defendant should have to do while doing time is divide," he told Friedberg.

Though I don't know whether this story is apocryphal or not, it does point to the most controversial episode of Rosenbaum's career on the federal bench: his dust-up with the Republican Congressional leadership over the status of the federal sentencing guidelines. For years, federal judges had been appallaed by the unfairness of the guidelines. The guidelines, or sentencing rules, were commonly thought to be mandatory, taking away judges' discretion and forcing them to impose sentences that were often terribly unjust in individual cases.

Rosenbaum was not alone in speaking out against the guidelines. But in 2002 he became a target for the Republican leadership of the House Judiciary Committee, which threatened to subpoena his sentencing records. This was a surprising turn of events for a Reagan appointee who had once been active in Republican politics. Rosenbaum's long-time colleague Ann Montgomery told the Star Trib that these were dark days for her friend, but that the experience made him a fuller, more compassionate person.

In 2005, Rosenbaum was vindicated when the U.S. Supreme Court ruled in the Blakely case that the federal sentencing guidelines are advisory, not mandatory.

Now, he's riding off into the sunset, ready for more world travel and able to command fees as an arbitrator that will help pay college tuition for his grandchildren. Renaissance man, indeed.

Saturday, September 4, 2010

Revisiting Atul Gawande's "Hellhole" Essay

It's been almost a year and a half since The New Yorker published Atal Gawande's provacative essay Hellhole, an eye-opening account of the overue of solitary confinement in American prisons. More than 25,000 American inmates are in solitary at any given time, according to Gawande's figures. Another 50,000 to 80,000 are in administrative segregation, which often involves isolation. Despite evidence showing that a stay of more than 10 days in solitary has no real benefits in imposing compliance with prison discipline, many offenders are subjected to solitary for years at at time. And because the human self is social, the deprivation of social contact is a recipe for driving people into psychosis. Gawande contrasts British and American approaches to offenders classified as "the worst of the worst." Beginning in the 1980s, British correctional officials gradually moved toward providing more, not less, opportunity for social interaction to the highest risk inmates. Meanwhile, the United States began to build supermax prisons, where inmates have virtually no human contact on a daily basis. Two paths diverged in a dark wood - and one has led straight to hell for tens of thousands of people.

Friday, September 3, 2010

Daedalus and Mass Incarceration

Daedalus, the Journal of the American Academy of Arts & Sciences, has devoted a special issue to "mass incarceration."

The classical connotations of the journal's name are not without irony when the topic is America's bursting-at-the-seams prison population. For it was Daedalus, the prototypical craftsman, who designed a peculiar form of prison (the labyrinth) to contain a a very particular fearsome creature (the Minotaur - half man, half bull).

Can Daedalus, the journal, turn the tables on its namesake and provide a forum for solutions that will help unlock the labyrinth of America's correctional system?

Tuesday, August 31, 2010

Prison Grove: All These Broken Lives

The idiosyncratic rock singer Warren Zevon forewent invasive cancer treatment to finish his final album, The Wind. One of the tracks was a haunting meditation on life (and impending death) behind bars called Prison Grove.

"All these broken lives," sang the dying Zevon, backed by Bruce Springsteen and other long-time friends. Suffering and the sounds of an inscrutable fate permeate the song.



The macabre had long held a strong fascination for Zevon. Throughout his career as a solo artist, his oeuvre often included songs whose stories spilled out into over-the-top violence. Roland the Headless Thompson Gunner, Werewolves of London, Excitable Boy, and so on.

But though the material sometimes seemed lurid, Warren Zevon was not engaged in nihilistic posturing. In a violent world, it was more like a recognition of reality. Laying bare the skull beneath the skin, to acknowledge our common human vulnerability.

So to me it was perfectly fitting, on his final album, for Zevon to acknowledge the terrible pain inflicted across America by out-of-control incarceration. When Zevon released Excitable Boy in 1978, the U.S. prison and jail population was slightly over 500,000. Thirty years later, it had risen seven-fold, to 2.3 million. Prison Grove reflects the agonizing toll that this unprecedented increase has taken on so many lives.

Saturday, August 28, 2010

AT & T Takes on Texting While Driving

Public service announcements on television are usually easy to ignore. They are typically shown among a block of commercials, when many viewers have already used the remote to bounce to another channel or at least mute the sound. And that's not even counting all the people who tivo through them.

Amid this attention-challenged landscape, AT & T's PSA on texting while driving stands out. The TV screen is suddenly filled with nothing but three short words: Where U at.

The spare, abbreviated words stay on the screen while a woman's voice says, "This is the text my daughter was reading as she drove into oncoming traffic."

No text is worth dying for. A true statement, to be sure. Sadly, many lives have been lost already as society strives to instill its truth in the minds of drivers of all ages, especially younger ones.

The AT & T announcement concludes its point with an effective tagline: It can wait.

Tuesday, August 24, 2010

Mandela Tops the SERP

I'm making my way, in fits and starts, through Kate Braestrup's Marriage and Other Acts of Charity. It's a thought-provoking essay on the religious dimensions of the marital state, penned by a minister who lost her husband (and father of her four children) to a tragic accident.

Last March, on a solo spring break ramble, I happened to see the book, and purchase it, at Prairie Lights in Iowa City.

Tonight, I decided, as a little experiment, to see what would come up on the SERP (Search Engine Results Page) for a Google search on the terms "marriage, sentencing, corrections."

The answer was Nelson Mandela, who remained married to his second wife, Winnie Madikezela, throughout his 27 years in prison. She endured an 18-month incarceration of her own and was there to meet him upon his release in 1990.

Winnie had been unfaithful to Nelson while he was imprisoned, however, and the couple had political differences over the proper means by which to resist apartheid. Her rhetoric had turned violent, including an endorsement of the practice of "necklacing" - burning people alive using tires and gasoline. She was also found criminally complicit in the kidnapping and murder of a 14-year-old boy by her bodyguards, for which she paid a fine after originally being sentenced to six years in prison.

Amid all this, the marriage of Nelson and Winnie Mandela - nominally intact for so long - finally ended. They separated in 1992, two years after Nelson Mandela's release from prison, and were divorced in the mid-1990s.

In recent months, Winnie Madikizela has become even more estranged from Nelson Mandela. In March, she gave a notorious interview in which she accused him of betraying the blacks of South Africa by not doing enough for the poor.

I doubt that Winnie Madikizela has read Kate Braestrup's book. But she should. If she did, she might find it in her heart to be more charitable to her former marriage partner.

Thursday, August 19, 2010

What Does a Sex Offender Look Like?

A terrible nursing home abuse case came to light in 2008 in Albert Lea, a town of 25,000 people in southern Minnesota, a couple of hours from the Twin Cities.

Investigators from the state Health Department found that six aides at the Good Samaritan home in Albert Lea physically and sexually abused as many as 15 residents who struggled with Alzheimer's disease or other forms of dementia. Four of the six aides were juveniles. Their cases were handled in the juvenile system, where they were determined to have failed to report the abuse.

The other two aids - Brianna Broitzman, now 21, and Ashton Larson, 20, are being prosecuted in the adult system. Broitzman recently agreed to an Alford plea, which means she still asserts innocence but concedes there is enough evidence to convict her of gross misdemeanor disorderly conduct concering three of the victims. She will be sentenced on October 22. Larson's case is still pending, with a trial date not yet set.

The alleged conduct was deeply and egregiously offensive. Spitting in a resident's mouth. Jabbing the breasts. Sticking a finger up the rectum. Getting in bed with a resident and miming sexual intercourse. Not just disgusting, but shocking - and criminal.

In the Star Tribune account of Brianna Broitzman's plea, Iris Freeman, a law professor from St. Paul, pointed out that the Albert Lea case overwhelmed the previous stereotypes of a likely sex offender profile. For the abuse was perpetrated not by menacing, misfit men, with unappealing mug shots, but by nubile young women with appealing yearbook photos. Appealing photos that the online version of the Star Trib was happy to use.

Did the print version of the story refrain from spotlighting the fetching photos? I certainly hope so, but my wife and I now carry only a weekend subscription.

Saturday, August 14, 2010

Pete Rose, the Anti-Goethe

Anna Quindlen said recently that one of the most remarkable things about being a parent is the way in which it allows you to re-experience elements of your own childhood, this time in a much richer, more profound way.

Such is the case with me and baseball. My two boys, ages 10 and 7, were on the point of discovering it late last season. In October, while my wife, Diane, was in Tanzania, Micah, Luke, and I listened to the radio broadcast of the Twins’ one-game playoff with the Detroit Tigers for the A.L. Central title. It was a thrilling game — all the more so because of the radio medium — and the boys were hooked.

As the winter of 2010 wore on, I found myself experiencing baseball fever like I never had before. Keeping the hot stove league hot was a given for two reasons.

First, Micah and Luke were using their allowance money virtually every week to stock up on Topps baseball cards. And second, the Twins’ front office was making moves designed to strengthen the team for a deep postseason run in its first season at our new outdoor Field of Dreams — known, thanks to the corporate naming rights, as Target Field.

(The construction was made possible, by the way, by a tax increase approved by a 4 to 3 vote of the Hennepin County Board, with the 4 boys outvoting the 3 girls. That story, in itself, would merit a post.)

All this is by way of explanation for why, a few days ago, I found myself at the public library, checking out an armful of baseball books and videos. One of these — solely because the title was intriguing — was My Prison Without Bars, by Pete Rose and Rick Hill.

Though I knew Pete Rose, the MLB all-time hits leader and exposed gambler, had been banned from all official involvement with MLB for betting on baseball, I wasn’t really familiar with his Nixon-like attempt to rehabilitate himself. After reading the first few pages, however, I was very quickly deeply appalled.

What appalled me was not the drumbeat of constant profanity that Rick Hill — the professional writer whom the practically illiterate Rose chose to tell his story — inserted into the text, seeking to replicate Rose’s voice.

No, it wasn’t that. Nor was it Rose’s pathetic attempt to enlist sympathy for himself by milking the scene in which he must say goodbye to his young son before heading off to prison for tax evasion.

No, it wasn’t that either. It was the unconcealed misogyny with which Rose has Hill tell his story.

My Prison Without Bars, Pete Rose's apologia pro vita sua, begins in 1947, with 6-year-old Pete serving as waterboy at his father’s semi-pro football game in Cincinnati. The elder Rose breads his leg, but refuses to come out of the game and makes the winning tackle. Or at least that’s what Pete, 55 years later, asserted to his amanuensis, Rick Hill.


Rose cites this as a defining moment, in which worship of his strong, decisive father crystallized and he came to scorn the “idle gossip” of women. For his mother was not down there on the field, looking into Pete’s father’s strong, steely eyes.

(Pete, my father was my hero, too. But playing on a broken leg in a semipro football game is hardly the capstone of heroism.)

Is it any wonder that a divorced, 60-something man who can tell the story Rose tells with a straight face has had a train wreck of a family life? John Gottman, one of America’s foremost experts on indicators of divorce, might want to include a footnote on this the next time he revises The Seven Principles for Making Marriage Work.

What a contrast Pete Rose’s contempt for women makes to Johan Wolfgang von Goethe’s life-long love affair with the fair sex. Where one man claimed to hear superficial chatter, the other recognized that “Das ewige Weiblich zieht uns hinan.”

Thursday, August 12, 2010

Syria's National Morale — or Morass

My father would have turned 79 tomorrow.

He died on October 7, 2007 from complications of liver disease — a condition he somehow came down with even though he hardly ever consumed alcohol. He served as a Lutheran minister for 38 years, preaching the word, baptizing those new to the faith, burying the dead, conducting marriages, visiting the sick, and doing all the many other things pastors do to equip the saints.

I miss him every day.

With my dad in the back of my mind, I happened to hear about a 79-year-old human rights lawyer in Syria being sentenced to three years in prison for supposedly “weakening national morale.” Haitham Maleh had spent six years as a political prisoner in the 1980s. This did not deter him, however, from decades of advocacy for an end to emergency rule in Syria.

Amnesty International decried the sentence and described Maleh as a prisoner of conscience for his criticism of the corruption and one-party rule of the Ba’ath party, which has banned all opposition since it took power in 1963.

Maleh is not the only human rights activist who has been imprisoned. Mohannad al-Hassani, a 43-year-old lawyer, was also jailed for three years on similar charges.

Neither Maleh nor Hassani should be in prison. One reason I support Amnesty International is that it keeps their personal stories and political commitments live, despite the unjust imprisonment.

Given the grim conditions in Syrian prisons and the ineluctable effects of age, Haitham Maleh may or may not leave prison alive. But he's fighting the good fight, just as my father did in his own ministry. In the words of the epitaph written by civil rights pioneer Jackie Robinson, as engraved on his tombstone, "A life is not important except in the impact it has on other lives."

By that measure or any other, Haitham Maleh's life is important. As was my father's.

Tuesday, August 10, 2010

The Circuits Split on GPS Searches

Police in Washington, D.C., put a GPS device on a suspected drug dealer’s car and — without getting a warrant — used the tracking system to follow his movements day after day for a month.

Finally, they nabbed him.

The U.S. Court of Appeals for the District of Columbia Circuit has held that using GPS in this way violates the Fourth Amendment’s protection against unreasonable searches and seizures. Other courts, however, have held otherwise.

What will the U.S. Supreme Court say?

Thursday, August 5, 2010

Room for the Wrath of God? Not in "Salt"

I felt like some escapist summer fare at the cineplex, so I took a couple of hours of vacation time and went to see Salt, which was purportedly a spy thriller.

Excrebable, is what it was. Ludicrously stupid. Redundantly violent. The worst movie I've seen in years.

The basest of behaviors, however, can point us back to first principles. For me, that means the Christian alternative to the practically non-stop fit of vengeance wrought by Angelina Jolie's preposterous character.

Cf. Rene Girard, in Violence and the Sacred: "To make a victim out of the guilty party is to play vengeance's role, to submit to the demands of violence."

Sounds like Angie's Evelyn Salt, alright, beholden to a vendetta. Yes, she does switch vendettas midway through the flick, changing a Russian, retro-Cold War vendetta for her own personal one. But it comes to much the same thing: trying to put an end to violence through violence, not recognizing, or perhaps not caring, that constant retribution creates a ceaseless cycle of reprisal and counter-reprisal.

The apostle Paul urged a different way in Romans 12:19: Beloved, never avenge yourselves, but leave room for the wrath of God, for it is written, 'Vengeance is mine, I will repay, says the Lord."

Angie's scriptwriters probably didn't see the right box office equation in that view of the world. (Although Werner Herzog certainly got a lot of ironic mileage out of the "wrath of God" in his film Aquirre, der Zorn Gottes.)



Girard again: "By denying religion any basis in reality, by viewing it as a sort of bedtime story for children, we collaborate with violence in its game of deception."

By shelling out $6 for a late-afternoon matinee of Salt, was I collaborating with volence?

Tuesday, August 3, 2010

Swimming in a Sea of Incarceration

Susan Sontag's son, David Rieff, published a memoir about his mother's death. After two previous bouts with cancer, Sontag succumbed to leukemia in 2004 at age 71. David, her only son and, liker his mother, a writer by trade, tried to give voice to his feelings a few years later in a slim book with a jagged-edge title, Swimming in a Sea of Death.

Years before, Sontag, one of the leading literary luminaries of her era, had written a widely discussed memoir of her own about dealing with cancer. Illness as Metaphor came out in 1978, the year I graduated from high school and started college. Though I did not read it, her essay collection Under the Sign of Saturn sits on my bookshelf, and her novel The Volcano Lover lies packed away in a box somewhere. So much to read, so little time.

The reason I decided to pick up Rieff's book is that I, too, am dealing with the lost of a beloved parent. My father died of liver disease in October 2007, at age 76. How he got that disease, we'll never know. Other than the small portions in communion wine, he did not drink alcohol. Yet he did of a disease often associated with acute alcoholics. The irony of this injustice still aches in my heart, and it's the type of irony that Sontag explored in her essays.

As I began reading Rieff's memoir, one question stood out. He asks himself whether he is overreaching in seeking to assign some special meaning to the feverful intellectual passions of his mother's final years. He wonders where she had some sort of presentiment that her time was drawing short. Then he catches himself: "Or is all of this just that vain, irrational human wish to ascribe meaning when no meaning is really on offer?"

Somehow this search for meaning reminded me of America's 2.3 million people in jail or prison. What does it mean, for each of those lives, to be locked up? And what does it mean for us, as a society, that we engage is such wholesale incarceration? To me, the answer that "it is what it is" is no answer at all.

Monday, August 2, 2010

Confession and Absolution at LOTW

A new Christian congregation called Light of theWorld is taking root amid the corn fields and subdivions of the Twin Cities' southern exurbs. Launched three years ago in Farmington after extensive planning by the St. Paul Area Synod of the Evangelical Lutheran Church in America and several mission partners, LOTW has already achieved financial independence.

My family and I worshipped at LOTW yesterday as the congregation celebrated this milestone. My wife, Pastor Diane Sponheim, one of the pastors at Shepherd of the Valley Lutheran Church, brought greetings from SOTV to LOTW. (Yes, Lutherans do seem to like abbreviations.) SOTV has been one of the key financial sponsors of LOTW, whose minister, Pastor Deb Stehlin, formerly served at Shepherd.

With an emphasis on contemporary liturgy and community building, Light of the World reaches out to many people who previously did not have a church home or who seek a fresh experience of being and doing church.

One element of the contemporary liturgical approach was in the wording used for corporate confession and forgiveness. Here is how it began:

Leader: Let us confess our sin in the presence of God and of one another.

(Silence for reflection)

Leader: Gracious God,

Leader and Congregation: We confess that we have turned away from you and from our neighbor and have isolated ourselves in fear. By our own choosing we have become captive to sin. Have mercy on us. Break into the prison we have built around our hearts to keep you and others away. Breathe into us your forgiving Spirit and allow us to serve you and all people in newness of life.

Building prisons out of fear. Hmm, that sounds familiar. Hasn't a similar phenomenon driven America's prison-building boom of the last four decades?

With the practically blank check for prisons at last coming under budget scrutiny across the country, it's time to face our fears - and maybe even engage in a degree of confession about the overuse of incarceration as a strategy for dealing with social conflict. Confession would not only be good for the soul; it would open up possibilities for thinking outside the proverbial box.

Saturday, July 31, 2010

Land of 10,000

For tourism purposes, one of Minnesota's slogans has long been the Land of 10,000 Lakes. That's actually an undercount, as geographers put the number of lakes 10 acres or larger at 11,842.

We don't like to think too much, however, about also being the Land of 10,000 Homeless. Yet that is what we are.

Every three years, the Wilder Foundation, a highly respected nonprofit, conducts a systematic survey to identify the number of homeless people in Minnesota. On October 22 of last year, Wilder counted 9,654 people. The number rises to 13,100 - more than the number of lakes - when a formula developed by the federal Housing and Urban Development department is applied.

On any given night, the homeless poplulation in Minnesota includes 600 to 700 youth under 18.



The number of lakes has been stable for millenia, since the glaciers passed through. But the number of homeless has increased 20 percent in the last three years.

How can we, as citizens of Minnesota, get our arms around this enormous problem? Wilder offers resources to start making a difference.

The CO's Initial Checklist

In 1997, the journalist Ted Conover was a corrections officer candidate in New York State, taking a course on chemical agents at the training academy run by the Department of Correctional Services.

The instructor, an officer named Vincent Nigro from a medium-security prison downstate, began the first class with a one-liner.

"What's the first three things you get when you become a CO?" he asked the assembled recruits.

Nigro waited a moment, then provided the answer. "A car. A gun. A divorce."

A humorous line, to be sure, but pointing to the hard realities of the job to come. In exchange for a measure of financial security, correctional officers take on work in a setting that can turn violent at any moment. And the ensuing stress takes a toll on many marriages.

Is there data on this, one wonders? A study comparing the incidence of divorce among corrections workers with the general population?

Friday, July 30, 2010

Walking Within the Walls

Why would one of the America's foremost experiential journalists go through a grueling corrections officer training program and take on harrowing, highly stressful work in a prison? That's what Ted Conover did in the late 1990s in order to research Newjack, his account of life inside New York's notorious Sing Sing prison.

The answer, Conover tells us, has to do not only with the societal interest in understanding what goes on inside the walls. It also involves a fascination, dating to boyhood, with the walls themselves, and the hidden world they conceal.

Conover writes of passing by a small Minnesota town on the way to family reunions, seeing "a prison with a massive brick wall and turret-like guard towers," and thinking about the scene for hours. This uneasy yet intriguing glimpse of the external architecture of incarceraton provided a formative template for later encounters with such high-profile places of confinement as the Tower of London and Pennsylvania's Eastern State Penitentiary.

Every time I read this, I ask myself, "Does he mean St. Cloud?" For I, too, was once a frequent traveler past a turreted prison on the way to and from northern Minnesota. And I, too, felt the fascination Conover describes so well.

Years after my boyhood forays with my family past the stark prison near St. Cloud, I had occasion to see what is on the other side of those turrets. In September 2000, the prison administration and the St. Cloud community organized an outreach event billed as Walk Within the Walls. With the inmates on lockdown for the day (a Saturday), people were invited to tour the prison and its grounds - and formed long lines to do so.

About six months after Walk Within the Walls, I returned to Minnesota Correctional Facility - St. Cloud as part of a research team from the corrections department central office in St. Paul. We were there to administer a survey aimed at eliciting inmates' views on the quality of their healthcare services. Walking among the old-style cells, distributing the paper survey form to inmates, was a rather surreal experience at times. Each member of our team breathed a sigh of relief as we concluded our work and left the prison behind.

Fascination from afar is one thing; the reality inside is quite another.

Sunday, July 25, 2010

AARP-Eligible and Incarcerated

Over 200,000 people over the age of 50 are incarcerated in the U.S.

That's why, on Christmas Eve last year, Human Rights Watch called American prisons "nursing homes with razor wire."

Given the low recidivism rates of older offenders, and their astronomical healthcare costs, one might think compassionate release would be used more often. But our culture, for a generation now, has unrelentingly insisted on getting its pound of flesh - year after aging year.

Friday, July 23, 2010

Wednesday, July 21, 2010

Searched Out and Known by God - Even in Prison

Last night I took part in my second board meeting of Prison Congregations of America. PCA is a nonprofit group working with inmates, corrections officials, local church communities, and mainline denominations to create congregations within prison walls. These are congregations where inmates gather to worship the Lord and support each other with prayer and - just as on the outside - the mutual consolaton of the saints.

The partnership model employed by PCA, involving close collaboration between a prison congregation and a church in the larger community, has already achieved notable success. There are currently 14 prison congregation in 10 states, with plans, God willing, for many more.

Rich Rienstra, pastor/developer of the inmate congregation at Ionia Bellamy Creek Correctional Facility in western Michigan, gave the devotions at the start of last night's PCA board meeting. He read from Psalm 146, which praises the God of Jacob, the creator of all things, who keeps faith forever and executes justice for the oppressed.

The Lord sets the prisoners free;
the Lord opens the eyes of the blind,
The Lord lifts up those who are bowed down . . .

Rich also read from Psalm 139, addressed by the Psalmist to the God who has searched him and known him and is prepared to follow him all the way to the depths of Sheol. Both of these passages, Rich said, resonate very deeply with members of the prison congregation.

As the board moved on to discuss the exciting opportunities and significant challenges PCA faces in this still-so-tough economy, these readings from the Psalms were the perfect place to start.

Monday, July 19, 2010

Postpartum Depression and Infanticide: Shades of Gray

A mother struggling with severe postpartum depression leaves her two-week-old son unattended in the bathtub, where he drowns. She then drives to a nearby reservoir, weighs his body down with rocks, and tells multiple lies to law enforcement about what happened.

At her first murder trial, the mother - let's call her Heidi - has an attorney who fails to raise the issue of her mental state as a possible defense, despite the fact that Heidi was hospitalized just days after her son's death for depression, suicidal thoughts, and panic attacks. A female juror refuses to convict on the first-degree murder charge, resulting in a mistrial due to a hung jury.

The prosecution brings the case to trial again and this time convicts Heidi of second-degree murder. She receives a mandatory 50-year prison sentence.

Heidi serves nine years in prison before the state supreme court rules she is entitled to a new trial because her original trial counsel had failed to consider her mental state.

After ten months of freedom, however, Heidi pleads guilty to multiple acts of child endangerment. She is sentenced to up to 50 years in prison.

At sentencing, Heidi's attorney points out that in 29 countries around the world, when a mother who kills a child under the age of one can prove that her mental state was disturbed due to childbirth, the maximum penalty is manslaugher. Most of these countries limit the consequences to probation and counseling.

After sentencing, the judge says he will take the practically unprecedented step of writing a letter urging the parole board to consider Heidi's release. Even the prosecutor, in pursuit of her for so long, acknowledges that she is no longer a threat to public safety and says he will write a letter to the parole board, too.

In this almost unspeakably sad story, Heidi is Heidi Anfinson of Des Moines, who killed her young son Jacob in the third week of September in 1998 - right about the time my wife and I moved to Des Moines to start jobs there. Heidi was ELCA Lutheran, as we were, and about our age, so her case has always seemd quite close to home. Indeed, the older of our two sons was born in Des Moines and spent the first few weeks of his life there before we moved to Minnesota.

"There but for the grace of God go I," a Christian will sometimes say when showing mercy.

The criminal justice system, of course, has a very different point of departure. Yet there, too, the principal actors in this dark drama have struggled to find a proper response. Scott Rosenberg, the judge who sentenced Heidi Anfison on her plea agreement, put it this way:

"We often like to think of things in black and white. But often, it is the gray that is the truth."

What color will the Iowa Board of Parole see in Heidi Anfinson's case, I wonder - and when will it act?

Sunday, July 18, 2010

Counting the Beans While Rome Burns

For tweve years, dating back to 1997, the Secuties and Exchange Commission strongly suspected that a billionare businssman named R. Allen Stanford was operating a Ponzi scheme. But the SEC did not bring fraud charges until February 2009,

How could this be?

In April 2010, the inspector general of the SEC attempted an answer. It was not due to "any improper professional, social or financial relationship on the part of any former or current SEC employee," according to the IG's report. This finding came despite evidence that a SEC enforcement official who helped block full-scale investigations of Stanford's activites later served as his legal counsel.

The inspector general did find, however, that "institutional influence" was a factor in the repeated decisions not to investigate Stanford more thoroughly. "Institutional influence" is the IG's shorthand phrase for a stats-obessed metrics mentality that prevailed within the Forth Worth office of the SEC for over a decade. Senior agency officials believed they were being judged by their managers on the sheer number of cases they brought, and therefore discouraged the enforcement staff from pursuing challenging cases. Stanford's case wasn't a "quick hit," so time after time it got shelved - until the changing of the guards to the Obama administration.

I'm not surprised to learn of utter imcompetence bordering on malfeasance during the George W. Bush years. What I'm struck by, rather, is that the inaction in the face of ongoing fraud began during the Clinton era. How does one account for this?

Jason Linkins has very good blow-by-blow account in The Huffington Post.

In terms of the underlying ideology, it surely has something to do with the often-toxic tide of Reaganism that continues to wash through American public life. If government is supposed to be the problem, not the solution, then one option is to "starve the best" - keep cutting the funding, yet still somehow expect the same services.

Having worked in state government in the late 90s and early 2000s, I remember quite well the building pressure to do more with less. Al Gore himself presided over the Reinventing Government initiative that was so popular back then. Small wonder, then, that major balls got dropped while bureaucratic managers counted the beans.

Wednesday, July 14, 2010

Willie Nelson Makes a Case for Legalizing Weed

At age 77, after six decades on the road, Willie Nelson is an American icon. He's sold fifty million albums, made a slew of movies, and given freely of himself to charitable causes. Even if you don't dig country music, or remember his efforts to organize the Farm Aid concerts a quarter century ago, you've probably heard snippets of his signature song, On the Road Again.

Just in time for the Fourth of July, Parade magazine ran a cover story on Willie recounting his gripping life story. Raised by grandparents during the Great Depression, he has experienced three failed marriages, the suicide of a son, numerous drug busts, and tense tangles with the IRS. Today, however, according to the Parade account, he has found, with his fourth wife, Annie, 50, a level of tranquility he had never previously known.

Willie Nelson believes that his new-found tranquility also has something to do with cutting way back on alcohol consumption and partaking freely of cannabis. In fact, this American icon is an articulate spokesperson for the legalization of marijuana.

"Legalize weed. It's 50 percent of what's causing the problems along the border with the drug cartels. A lot of people who sell it want to keep it illegal because that's where the money is. The cartels are now in hundreds of our cities, growing and selling weed. Legalize it, and it would stop all that immediately."

Is this reasoning sound?

Saturday, July 10, 2010

Know 2, Don't Know 8?

In sixteeenth century Europe, when pretensions to absolute certainty made burning supposed heretics at the stake an all-too-common occurrence, Michel Montaigne remained a cool reserve.

How, he queried in his essays, could people be so certain of the truth of dogmatic, abstract propositions, when the human mind is so inherently limited? And, one must also note, the human heart is so potentially treacherous?

A decade into the 21st century, such healthy scepticism remains an important counterpoint to pell-mell orthodoxy. Why are so many people in America incarcerated, and what do we really get for the constant and still increasing drain on our collective coffers?

Let's admit that, to a very great extent, noone knows.

A number of the foremost criminologists have recently moved toward this more Montaigne-like view. Michael Tonry, puncturing holes in the easy explanations of why crime rates fell throughout the 1990s, speaks openly of "mystery." Alfred Blumenstein points out the very low amount of money spent on criminal justice research, compared to medical and even dental research. And Franklin Zimring commented a couple of years ago, regarding the state of criminal justice knowledge, that one could describe the score on that question as Know 2, Don't Know 8.

To recongnize the importance of this epistemological humilty, one could even go two millenia back from Montaigne to Socrates. Admitting what you do not know can be the beginning of wisdom.

Thursday, July 8, 2010

The Misfit on Crime and Punishment

How do you respond when confronted with unredeemed evil? And where does evil come from?

In Flannery O'Connor's A Good Man Is Hard to Find, a previously talkative grandmother can muster only one word when she finds herself alone with an escaped convict known as The Misfit. The word is Jesus, and she says it twice - intending it as an invocation of sorts, a call to prayer, but sounding, in practice, more like cursing.

The mention of Jesus' name immediately elicits a revealing reply from her abducter. "Yes'm," he says, "Jesus thrown everything off balance. It was the same with him as with me except he hadn't committed any crime and they could prove I had committed one because they had the papers on me."

The Misfit does not see himself as blameless. Yet he feels a kinship with Jesus, who knew what it was like to have the full force of the law arrayed against him.

For the Misfit, however, a lengthy prison sentence was not redemptive like Jesus' death. Rather, he becomes consumed by a sense of grievance that the punishment did not fit the crime. "I call myself The Misfit," he tells the grandmother, "because I can't make what all I done wrong fit what all I gone through in punishment."

When Flannery O'Connor published this story in 1955, the U.S. prison population was a fraction of what it is today, and a character like The Misfit seemed like an outlier.

Today, brutal killings have become so common, and the media to report them so ubiquitous, that the shock value they had a half century ago is largely gone.

My question is this: To what extent have the heavy-handed sentencing policies of recent decades contributed to the creation of a multitude of misfits?

Sunday, June 27, 2010

California's Prison Visit Moratorium

California staggers on with its intertwined correctional and fiscal crises.

In the latest episode, the state suspended virtually all visists to inmates, except for those by attorneys, for the weekend of June 26-27. The California Department of Corrections and Rehabilitation asserted that the suspension would save $400,000 for the cash-strapped state.

Regular visits are supposed to resume in July, when the new fiscal year begins. That is some consolation, I suppose, for inmates and their families who were denied visits this weekend. But it certainly does not justify creating such an unsustainable prison system in the first place and repeatedly failing to fix it, despite a plethora of federal court orders to do so.

Pennywise, poundfoolish.

Saturday, June 26, 2010

The Missouri Bar, July 1986

When I read the results in the Kansas City Star, on the first Sunday in October of 1986, I felt a profound sense of relief. I had passed the Missouri bar exam, administered six weeks earlier in Jeff City − as Missourians are wont to call their tiny, rather obscure state capital,

The drive from Kansas City on a 100-degree day in late July was stressful. I had picked up my little hand-me-down 1980 Olds Omega in the parking lot of Rockhurst College in KC, after flying down from Minneapolis-St. Paul. The BAR/BRI course hosted by Rockhurst had ended a week or so earlier, so I’d gone back to my parents’ home in Minnesota for the last week of study before the exam.

In such heat, I was concerned that the decidedly-not-young Olds would boil over, and indeed it was making problematic noises as I made my way down I-80 toward Jefferson City. Somehow it held together, and I breathed a sigh of relief as I pulled into the Ramada Inn where the exam was being held and checked in without incident.

The two or three days to follow were a blur of exam taking and coping. The two news stories catching my attention were Antonin Scalia’s nomination to the Supreme Court and the outcome of the United States Football League’s antitrust case against the NFL. Never before or since, even during the Iowa bar in February 2000, have I experienced such 24/7 immersion in the law.

Interesting as the USFL’s anguish was, the Scalia story really stood out. Only a little over a year later, Robert Bork let it all hang out in his confirmation hearings and − it became a verb − got borked, Scalia was able to play it coy as coy can be. Any question that might raise even the most reticent of ideological eyebrows was met with the same, on-message response: “I’m sorry senator, I can’t answer that because it implicates an issue that might come before me on the Court, if I am privileged to so serve.”

When I finished the exam, I drove the Olds back to KC and caught a flight to Chicago. From there, I got a shuttle to Valparaiso, Ind., where I had graduated from law school two months before. My parents were waiting at my apartment, after driving out from Minnesota. My mom saw my crestfallen face and feared the worst.

As it turned out, however, I had stayed strong throughout the exam. My multistate (nationally applicable multiple-choice) score was so high that, a year later, I was admitted in Minnesota on motion, without having to take the Minnesota exam. I was sworn in as a member of the Missouri bar in the fall of ’86 by the Honorable Charles Shangler, the judge I was clerking for at the Missouri Court of Appeals.

Wednesday, June 23, 2010

BJS Compiles the Numbers, Year-end 2009

The report released today by Bureau of Justice Statistics on the 2009 year-end prison population was a mixed bag.

The remarkable news is that, for the first time since 1972, the total state prison population went down. The decrease was not large − slightly less than 3,000 inmates (2,941) in a total state inmate population of 1.4 million. But the first drop in 38 years, even if small, is notable evidence of the Great Recession, if not necessarily of a rethinking of the underpinnings of sentencing policy.

And yet, despite the state decline, the overall U.S. prison population still kept going up, as the federal figure increased by 6838 to 208,118. The federal increase was 3,897 more than the state decrease, putting the combined state and federal total at 1,613,656 on December 31, 2009, according to BJS.

As Doug Berman noted in his sentencing blog, it’s scarcely a surprise that the one jurisdiction constitutionally able to run a deficit went in the opposite direction from budget-strapped states.

I would add a further thought, with a nod to Jim Webb’s ongoing effort to initiate a real dialog about fundamental sentencing reform. If reform is driven only by fiscal realities, and not also by a revisiting of the mass-incarceration model itself, the results are not likely to amount to much.

To be sure, cost is important. The more important question, however, is what purposes are served by mass incarceration? Intoning the words “public safety” endlessly is not an answer. It is a tautology − maybe even a boondoggle.

Saturday, June 19, 2010

Parents in Prison

Over 1.7 million minor children have a parent in prison, according to a 2008 estimate by the U.S. Bureau of Justice Statistics.

The overwhelming majority of those parents are dads. BJS data showed 744,200 fathers and 65,600 mothers in prison at midyear 2007.

Think about it for a minute, on this eve of Father's Day. We live in a country where three quarters of a million dads are separated from their families by incarceration.

What does this do to the social outcomes of the children? And to the souls of the parents behind bars?

Wednesday, June 16, 2010

Don't Sweat the Small Stuff

In February 2000, I was seated at a writing table in a ballroom at the University of Iowa, waiting tensely along with dozens of others for the Iowa bar exam to begin.

Before we could start, the examiners asked us to write something in our test booklets - as a writing sample, they said, in order to avoid fraud. Wouldn't want someone borrowing someone else's ID and taking the test for them under false pretenses.

The two sentences we wrote have stayed with me ever since.

"Don't sweat the small stuff," went the first sentence. "What a good reminder," I thought.

The second sentence went even farther: "It's all small stuff."

Really? Three years of law school study, thousands and thousands of tuition dollars spent, seemingly a career on the line - and it's small stuff?

Well, in a way, yes. Though the words "dont sweat the small stuff" weren't nearly as eloquent as the serenity prayer, to me they hinted at a similar idea.

After the exam, I tried to take this notion to heart as I awaited the results. Easier said than done, to be sure.

Finally, one day in early April, I walked over to Drake Law School from the duplex my wife and I were renting a couple of miles away. Thankfully, the posting on the door of the law library showed I was among those who passed. A few days later, I was sworn in to the Iowa bar in a ceremony held in a grand old auditorium in Des Moines called Hoyt Sherman Place.

Hoyt Sherman Place is about a mile from Methodist Hospital, where - almost ten years ago now - our first son, Micah, was born.