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.