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.


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?