Earth Stood Hard as Iron

Tonight my friend Lynne sang In the Bleak Midwinter at 5 o'clock worship. It was very affecting; a beautiful song, beautifully sung.

In the bleak midwinter,
Frosty wind made moan,
Earth stood hard as iron,
Water like a stone.

Christina Rosetti was not writing about prison on a literal level. She was writing about the moment before the Incarnation, before a people in darkness saw a great light.

Figuratively, however, Rosetti's imagery evokes the winter of the heart that prison must be. The isolation and hopeless desperation experienced by many inmates are hard for those of us on the outside to understand. But we should not doubt the depth of the despair within the walls.

Prison ministry seeks to respond to this terrible void, in a place where all seems hard as iron. That is why I serve as a board member of Prison Congregations of America, which works to organize church communities within prisons.

In such a community, centered on Christ, the spirit flows. Water is no longer like a stone, but rather a cup of kindness to each storm-tossed soul.

Paradigm Shift Shall Surely Come

This blog turned three yesterday.

Depending on how one measures, that is arguably a fairly long time. Senator Jim Webb’s proposal for a national sentencing reform commission, for example, has come and gone.

By broader measures of duration, however, three years is not that long at all. The dominant paradigm of mass incarceration remains very much in place in American criminal justice.

Yes, there are some reform experiments underway in cash-strapped states that can longer afford to lock so many people up for so long. But the fundamental focus on prison and punishment remains very much in place as 2011 draws to a close, just as it did in 2008 when I put up my first post.

Paradigm shift shall surely come to American corrections. It just won’t come on cue, merely because one year gives way to another.

Glen Loury on Factories For Producing Inmates

Glen Loury’commentary on America’s correctional Leviathan came to my attention in 2009. Though I knew he taught at Brown, I didn’t realize until I watched this video that his primary discipline is economics

The economic perspective is a valuable one in approaching questions of incarceration, class, and race.

How is it, for example that most of the people who go to prison for involvement with drugs are poor and non-white? And how is it that America, with five percent of the world's population, has 25 percent of the world’s prison population?

Loury describes the American criminal justice system as “an engine for producing and reproducing racial inequality. “ In certain neighborhoods, he argues, jails and prisons are essentially “factories for producing inmates.”

The factory works by constantly exposing new generations to a culture of entrenched interaction with the prison system. Young men in these poor, crime-ridden neighborhoods tend to have few positive role models in their lives — in large part because widespread incarceration has taken such a toll on their social networks.

Young men in this setting often become enmeshed with the law themselves and get sent to prison. The percentage of such men who are from racial minorities is far disporportionate to those groups' percentage of the U.S. population as a whole.

Upon returning to the neighborhood after serving a prison term, these men (and a few women) face daunting challenges in finding proper employment. The Great Recession and its high-unemployment aftermath have only added to these challenges.

Yet the Recession has also spurred efforts in some states to reform a prison system that has become too costly to sustain. To use economic parlance, what’s needed is a change in the business model for the whole system.

Setting Free the Captives, Literal and Figurative

Advent imagery is very strong on release of prisoners.

One example is in a hymn called Hark the Glad Sound, which we sang at worship in the sanctuary at Shepherd of the Valley in Apple Valley, Minn., over the weekend.

He comes the prisoners to release
In Satan’s bondage held
The gates of brass before him burst
The iron fetters yield.

Such imagery is scarcely surprising, when one considers the source. It comes right out of the prophet Isaiah, who sought to offer a prophetic word of encouragement to Israelites exiled in Babylon.

But in what sense are people today prisoners in need of release?  The anwer turns, of course, on how one understands the reality of sin.

During the Reformation, Luther and Erasmus had a lively debate about what sin does to the concept of free will. Luther argued that sin throws the will into bondage. Erasmus thought that view was too extreme and discounts the degree to which, despite sin, humans are still made in God's image.

Reflecting on the concept of captivity from the comfort of  a comfortable suburban home is a rather odd experience. Though I live far from any literal prison, I see four possibilities:

• Literally in prison, but spiritually free

• Literally in prison, and also spiritually in bondage

• Literally free (not in prison), but spiritually in bondage

• Literally and figuratively free

Given these logical possibilities, it makes sense that St. Paul was such a formative explicator of the concept of spiritual freedom. For Paul, after all, spend considerable time in a literal prison cell.

The Subjective Factor in Time Measurement

Doing time.

That’s one way to refer to serving a jail or prison sentence. For sentences to a term of incarceration, even indeterminate ones, are measured in numbers of months or years.

In an indeterminate sentencing system, the assigned number of years is typically a range. For example, on a certain offense the range could be from one year up to as many as five. It’s up to the parole board whether to let someone out before the maximum term is up.

In a determinate or structured sentencing system, what you see is generally what you get. If someone is sentenced to a five-year term, that’s what they are supposed to serve.

In some states, this is slightly qualified by assigning a certain percentage of the sentence to be served in the community on supervised release. In Minnesota, this percentage is one-third. Other structured sentencing states use different percentages.

These raw numbers, however, are merely the quantifiable, objective side of sentencing. There’s also the subjective experience, for the person sentenced, of what it feels like to serve the time.

I know, I know: “If you can’t do the time / don’t do the crime.” That simplistic mantra from the 80s has been used to try to justify a lot of heavy-handed sentencing over the years. It should really be the subject of a future post.

The point I want to make here is that, perhaps inevitably, the subjective experience of serving time — how long or short a sentence seems — will vary from inmate to inmate.

I was reminded of this while rereading a John D. MacDonald detective novel from the 70s called The Scarlet Ruse. MacDonald’s hero, Travis McGee, is trying to fend off a likely assault by a mob figure that could come at any time.

Awaiting the attack, McGee consults his watch: “Every ten minutes I looked at my watch and found that one more minute had gone by.”

In other words, in certain circumstances, the subjective experience of time can stretch out to be much longer than what the objective measure might imply.

Is that what it is often like for inmates doing time in jail or prison?

Everyone Loves a Krimi

Everyone Loves a Krimi.

Well, at least many people do. Krimi is German for crime genre. And the appeal of this type of “literature” or television is virtually universal.

In the 70s, in the U.S., it was Kojak and Columbo and McCloud. Today, and for the better part of the last decade, it’s CSI.

The bottom line is crime sells. Or perhaps we should say the investigation and prosecution of it sells. Either way, it sells.

There’s no use bemoaning this fact. To do that would be to miss important clues to the baser but nonetheless vital elements of the human personality in cultures that allow crime fiction to flourish.

James Hillman wrote about the importance of attending to basic (and seemingly base) intincts in The Soul’s Code. Before that, Hillman's intellectual preceptor, Carl Jung, wrote about it in Christ: A Symbol of the Self.

An integrated, wholly developed self isn’t only about the high road. It’s about the low road as well.

An Eye For Eye Doubles the Blindness

Vitality and directness.

Pastor-turned-seminary professor Eugene Peterson felt his students were frequently missing these qualities when they encountered the New Testament through the prism of traditional English translations. So easy to hear and read familiar words, but not really understand.

So Peterson translated the original Greek into a radically contemporary English version and published it as The Message in 2002. Through Lutheran circles, my mom and spouse became aware of the book, and I learned of it from them.

Consider a sample:

Here’s another old saying that deserves a second look. “Eye for eye, tooth for tooth.” Is that going to get us anywhere? Here’s what I propose: “Don’t hit back at all.” If someone strikes you, stand there and take it. If someone drags you into court and sues for the shirt off your back, gift wrap your best coat and make a present of it. And if someone takes unfair advantage of you use the occasion to practice the servant life. No more tit-for-tat stuff. Live generously.

This rendition of Matthew 5 provides a point of departure for a new potential paradigm in American criminal justice.

As I’ve argued repeatedly in this blog, we’ve been stuck for too long in the prison paradigm. This has come at great cost in broken lives and emptied treasuries, with little if any good to show in improved public safety from mass incarceration.

Indeed, one can plausibly argue that excessive reliance on prison as a response to social conflict actually reduces public safety. After all, almost all offenders get released eventually. And prison tends to make them more, not less, likely to reoffend when that happens.

In other words, tit-for-tat doesn’t work, if the justice system has goals that go beyond simple retribution. Could we try, as individuals and as a society, to summon the generous spirit that Peterson’s paraphrase of Christ counsels?

Byzantium's Epic Survival and the Balance Between Force and Persuasion

At the public library last night, I happened upon a book called The Grand Strategy of the Byzantine Empire. The title immediately reminded me of taped lectures by Edward N. Luttwak that I heard in 1982, when I was a senior at St. Olaf College.

It was still very much a Cold War world back then. The Soviet Union had invaded Afghanistan only three years before. The Berlin Wall seemed as impassable as ever. Gorbachev was a rising Soviet official, but glasnost (openness) was at best a glimmer on a far-off frozen horizon.

In the spring of 1982, my Russian history professor at St. Olaf, Robert Nichols, lent my roommate and me a tape containing lectures by Luttwak on “The Grand Strategy of the Soviet Union.” This topic became the subject of his book by that name the following year.

A generation in later, in 2009, Luttwak published his long-planned follow-up book on the Byzantine Empire. In it, he explores the divergent fates of the two halves of the old Roman Empire. How was it, he asks, that the militarily stronger western half succumbed so soon to encroaching tribes, while the far more vulnerable eastern half survived for over 800 years?

His answer is thought provoking. The eastern empire adapted and persisted while Rome was overrun because Byzantium devised a strategy that used:”a minimum of force and a maximum of persuasion.” Rome, by contrast, relied on what the George W. Bush administration, on the eve of the Iraq War, called “shock and awe.”

Shock and awe, however, was little more than a propaganda phrase for excessive reliance on force. And it led to a devastating cascade of calamities in Iraq for Iraqis and Americans alike.

One of those calamities, of course, was the prisoner abuse scandal at Abu Ghraib. In an upcoming post, I’d like to examine what happens when the relationship between force and persuasion gets out of balance in the criminal law.

Dominique Strauss-Kahn's Reversals of Fortune

Reversal of Fortune was title of a book and movie about a trial for attempted murder that yielded a surprising outcome. Claus von Bulow, an Austrian aristocrat-turned socialite husband, was eventually acquitted of charges that he tried to kill his wife Sunny by injecting her with an overdose of insulin. High-profile Harvard Law professor Alan Dershowitz defended van Bulow and wrote a book about it.

A film version appeared a few years later. Jeremy Irons played Claus van Bulow and Glenn Close was cast as Sunny. Ron Silver was in the role of Dershowitz. I saw the film at the Parkway Theater in Minneapolis on a very cold December night in 1990.

It is unclear whether there will be a film version of the Dominque Strauss-Kahn story. But the events that have unfolded since May of this year contain multiple reversals of fortune.

In May, New York police arrested Strauss-Kahn, the powerful chairman of the International Monetary and likely French presidential candidate, on charges that he sexually assaulted a hotel chambermaid. After being pulled off of an Air France jet and jailed, Strauss-Kahn was paraded past the press — as any other defendant in America could be.

Many French people reacted with anti-American suspicion and considerable disgust at this treatment. After all, Mr. Strauss-Kahn may have been accused of rape, but he had not yet been proven guilty.

Within a little over three months, prosecutors in New York had dropped the charges entirely. They had completely lost confidence in the truthfulness of the testimony of the maid who leveled the charges against Strauss-Kahn. This was certainly a reversal of fortune for the prosecutors, who were left with the proverbial egg on their faces.

Mr. Strauss-Kahn returned to France, but did not step right back into his former, power-broker life. For one thing, he still faces a civil suit brought by the maid, Nafissatou Diallo, who has made her name public.

Diallo's civil case is scarcely Mr. Strauss-Kahn’s only concern. There is also, well, the state of his soul. Could this have been on Strauss-Kahn’s mind when confessed in a television interview to “moral failing” in his hotel room encounter with Ms. Diallo?

Yet even as Strauss-Kahn seeks to reassert his moral self, the swirl of moral degradation increasingly seems to surround him. Various press reports have tried to link him to the operation of an alleged prostitution ring in the city of Lille. This alone may be lurid enough to attract movie interests, and indeed the Internet contains unbounded speculation about a possible porn film based upon these events.

For Dominque Strauss-Kahn, then, there have been numerous reversals of fortune in the last six months. And there are probably many more to come.

Tocqueville's "Pretext" and the Spectre of Warehousing

Alexis de Tocqueville’s Democracy in America is a highly celebrated book in certain academic circles. Introducing a handsome hardcover edition for the University of Chicago Press in 2000, Harvey C. Mansfield and Delba Winthrop went so far as to assert that it is “the best book ever written on democracy and the best book ever written on America.”

This post is not the right forum to assess that remarkable double claim. For now, I seek only to note the book’s historical connection to Tocqueville’s interest in prison reform.

In 1831, Alexis de Tocqueville and another young Frenchman, Gustave de Beaumont, traveled though America for about nine months. The two friends had procured an assignment from the French government to report on prison reform.

Tocqueville’s larger interest was a grand project to understand and interpret the dynamics of democracy and social equality in the United States. The applicability of this study to hierarchical European societies was of urgent concern in the wake of the French Revolution.

In a letter written in 1835, Tocqueville referred to the study of American penal reform as a “pretext” for the trip. But in January 1831, he and Beaumont did publish the study they promised. The English title is On the Penitentiary System in the United States and Its Application to France.

What was the nature of the reform that Tocqueville and his friend sought to study? It involved the goal of reforming people in penitentiaries, rather than merely punishing them in prisons.

Today, the prospect of penance in prison is a private matter. But to the reform movement Tocqueville and Beaumont came to study, penance was seen as central to the very purpose of prison. There are still vestiges of this in our retention of the word “correctional” in the phrase “correctional facility.”

After all, “correction” is a secular echo of the religious penance that reformers once promoted. Spiritual transformation is still possible in prison in 2011. But it is not the state’s concern. Indeed, even the notion of rehabilitation is not much favored anymore.

And that raises a spectre that haunts our entire correctional system. The spectre of warehousing.

U.S. Supreme Court Clarifies the Purpose of Prison

A federal judge gives a man a 51-month sentence for smuggling illegal aliens into the United States. The judge makes the sentence that long so that the man will qualify for a residential drug treatment program.

This is not permissible, the U.S. Supreme Court decided last June in Tapia v. United States. Writing for the Court, Justice Elena Kagan pointed to the text of the sentencing guidelines legislation passed by Congress in 1984.

The legislation specifically directs courts to “recognize[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” (18 U.S.C. 3582(a))

I have not really digested this opinion yet. But I will ask one question. Is it any wonder, with this view of imprisonment, that the recidivism rate for released inmates is so high?

To be sure, the large majority of prisoners are in state systems, not the federal system. Less than fifteen percent of prisoners are in the federal system. Indeed, two state systems - Texas and California - each rival the entire federal system in size.

In addition, in the state systems themselves, many states have rejected the structured sentencing guidelines system that prevails in the federal system. This was due, in part, precisely because of the perceived rigidity of the federal guidelines.

Nonetheless, U.S. Supreme Court decisions are always important, not only for the law they establish but for the tone they set. In Tapia, the Court's decision speaks volumes about America's preference for punishment over rehabilitation in establishing sentencing goals.

Mass Incarceration as a Contagious Disease

Apocalyptic imagery, to my mind, is entirely appropriate as a way to describe the state of our criminal justice system. I’ve use my share of it, over the years, in this blog.

A bloated Leviathan.

A colossal uncharted labyrinth.

Pick an over-the-top image, and it can be made to apply to a system in which seven million citizens sit in jail or prison — a number vastly disproportionate to anywhere else in the developed world.

So I was scarcely surprised by the titles of the two books recently reviewed by Michelle Alexander in the Washington Post. A plague of prisons arguably does point to some sort of collapse of the American criminal justice system. In pulblic health terms, mass incarceratoin is indeed like a contagious disease.

As a character in Camus' The Plague observes, "We've all got the plague." We all have it because we all live in this society that created it and continues to perpetuate it.

Budget constraints, and perhaps sheer exhaustion, are finally starting to partially contain the contagion. What will take its place, when the paradigm shifts?

Is the Just Person Always Happy?

“The just man is always happy,” Plato asserts in The Republic.

Really?

It depends, I suppose, on what is meant by “happy.”

What if the just man were wrongfully convicted?

Today, in America, stoic acceptance isn’t the only possible response. The Innocence Project works zealously to marshal definitive DNA evidence to clarify problematic convictions — which sometimes leads to exoneration.

Somewhere on an Emotional Desert Highway

Kym was frequently high on Percocet at age 16. Her mother knew this, but still left Kym in charge of her four year-old brother Ethan.

Driving home from a park, Kym lost control of the car and it plunged off a bridge and into a lake. She was not able to get Ethan out of his car seat in time, and he drowned.

Years later, Kym is still struggling with addiction. And with God too, like Job before her.

And then there is the utterly broken relationship with her mother. On the eve of her sister’s wedding, Kym finally confronts her with the loaded questions: “Why did you leave me in charge of him? What were you thinking?”

Rachel Getting Married raises many deep issues. To his credit, director Jonathan Demme has the good sense to leave many of them unresolved. The film is fiction, not a documentary. But it points to the raw emotion involved in human conflict, regardless of whether that conflict is addressed by the criminal law.

The fragmented family Demme depicts could have used a restorative healing circle. That was not to be, though the groom's touching rendition of a Neil Young song at Kym's sister's wedding provides a measure of musical therapy.

Sensitive About Sentencing Reform

“Maybe I’m too sensitive or else I’m getting soft,” Bob Dylan worried in a 1970s song lyric.

Tonight, I turned this line on myself when I reread an essay that seemed to imply that to call for radical reductions in America’s bloated prison system is to engage in naïve, short-sighted thinking.

In their essay in a special issue of Daedalus on mass incarceration, Robert Weisberg and Joan Petersilia warn of the “dangers of Pyrrhic victories” against it. They acknowledge that America’s incarceration levels make today’s prison system an outrageous outlier both historically and internationally. But they caution that trying to bring down the preposterously high number too fast too soon might be counterproductive.

Weisberg and Petersilia are concerned that reductions in the prison population must be accompanied by a sustained commitment to addressing the causes of recidivism. In practical terms, that means more probation officers, more drug treatment counselors, and so on.

Without these resources, Weisberg and Petersilia fear, a boomlet in new crime by released inmates could occur. And that, in turn, could prompt a visceral policy backlash. Lock ‘em up and throw away the key revividus.

I’m sensitive about this because I interpreted Weisberg and Petersilia to be saying that idealistic citizen-bloggers like me tend to be too naïve. We can let our passion blur our vision and fail to see the full strategic picture involved in systematic sentencing reform.

Am I being too sensitive in suspecting that the two veteran corrections scholars would dismiss this blog as superficial and sentimental? Maybe.

I take heart, however, from the point Glenn Loury makes in his concluding essay in the Daedalus special issue. Loury points out that leaving the decisions about corrections policy to self-appointed experts has had devastating effects on local communities and civic engagement.

To be sure, experts have important roles to play in reshaping sentencing and corrections policy. But if this country is a democracy, so do citizens.

Madness and Civilization II

In One Flew Over the Cuckoo’s Nest, inmates of a mental institution struggle for their dignity against controlling Authority. It was an iconic film of the 70s, with Jack Nicholson in one of his indelible roles.

A generation later, “cuckoo’s nests” are harder and harder to find. Wave of wave of closings of state mental hospitals have left more and more mentally ill people on the streets. Not surprisingly, many of them end up in prison — upwards of 350,000, NPR recently reported.

This is a calamity for all concerned: the mentally themselves, other inmates who encounter them, the staff who try to work with them, and on and on.

If Michel Foucault were still with us, he might be writing Madness and Civilization II.

Doing the Wall Street Shuffle All the Way to Prison

James B. Stewart’s fact-filled essay on the ImClone insider trading case presents a disquieting portrait of Wall Street as a forum for greed, betrayal, and the denial of truth.

The case unfolds in late December 2001 and into 2002, just a few months after the terrorist attacks of September 11, 2001. ImClone was only of many financial scandals playing out around this time. Others, such as Enron, the huge energy giant brought down by its own fraud, were far larger in scope.

None of those other scandals, however, involved a celebrity as well known as domestic diva Martha Stewart. The media’s feeding frenzy as the net of incriminating evidence began to close around Stewart was not a pretty sight. David Letterman, for example, joked on late-night TV about Martha handling her subpoena with an oven mitt.

But of course the ImClone case was no joke. And Martha Stewart was not even the central figure in it. That would be Sam Waksal, who had founded ImClone, a biotech company, with his brother Harlan in 1994,

Sam Waksal had trained in immunology and amassed a personal fortune. Yet he had also been forced out of a position at Tufts University for fabricating lab results and fired by New York’s Mount Sinai Hospital for similar reasons.

Though ImClone raised millions of dollars from investors, by 2001 it really had only one promising product: a drug called Erbitux that appeared to offer a treatment for colorectal cancer. The drug’s prospects seemed so encouraging that Bristol-Myers Squibb had offered an astounding $2 billion for a 40 percent stake in ImClone.

That deal was premised, however, on the Food and Drug Administration giving approval for Erbitux to be sold. When word got to Sam Waksal that the drug would not be approved, he and other family members immediately tried to dump their shares before the stock price tanked.

Though Martha Stewart was not a family member, she knew Waksal socially and they shared the same stockbroker, Peter Bacanovic, who had once worked for ImClone.

Bacanovic was eager to make his career at Merrill Lynch by ingratiating himself with Stewart, the superstar client. He was eager even up to the point of encouraging and facilitating insider trading. As ImClone stock faltered, however, he ended up incriminating her — and also his naïve assistant, Douglas Faneuil.

James B. Stewart’s account of the case doesn't only examine individual ethical choices, though. As his title, Tangled Webs, suggests, he’s also interested in the social systems that support or challenge individual decisions to lie. As the financial meltdown of 2008 showed, those systems had more severe underlying problems than most people would ever have imagined.

And we are still dealing with the fallout from them.

PSI Reports in Dakota County

On July 12, I attended a continuing legal education seminar on probation and pre-sentence investigations. The session was presented by two supervisors at Dakota County Community Corrections, Heidi Siebenaler and Phyllis Grubb.

I was especially interested in this particular CLE for two reasons.

For one thing, I worked in state government as a criminal justice planner for six years, from 1997 to 2003. In the early 2000s, I worked in the Minnesota Department of Corrections under then-Deputy Commissioner Mark Carey, who previously directed Dakota County Community Corrections.

The other reason I was so interested was that, in law school in the mid-1980s, I’d written my student law review note on pre-sentence reports. More precisely, my topic was the discoverability of federal pre-sentence reports under the Freedom of Information Act. Though I chose not to publish the piece, writing it earned me the job of articles editor on the Valparaiso University Law Review for my third year of law school.

Interestingly, one of the specific issues regarding pre-sentence investigation (PSI) reports that the two presenters raised was confidentiality. According to Siebenaler, some Minnesota counties bifurcate the PSI into confidential and non-confidential parts. In Dakota County, however, the entire report is considered confidential.

At first glance, it may seem odd, or even Kafkaesque, not to provide the offender with a copy of his own report. That is the rule, though, in Dakota County. The defense attorney is allowed to see it, but not the offender..

On further analysis, however, the rationale for the rule becomes clearer. In domestic abuse cases, for example, information that other parties have communicated to investigators about the offender can be very sensitive. In fact, Siebenaler said, this can even be a concern when information is communicated to the offender indirectly through the defense attorney.

Lipstick on a Prison Pig

California’s long-standing corrections crisis continues to unfold. The state has been under federal court order to address severe overcrowding that so severely impacted access to healthcare that the court found it constituted cruel and unusual punishment.

Though the case has been playing out for years, the situation remains tense. Recently, over 6,000 inmates went on a hunger strike to protest the conditions of incarceration. They claimed that many inmates are subjected to sensory deprivation in soundproofed cells without windows for 22 ½ hours a day.

The hunger strike went on for three weeks and involved 13 of the 33 prisons in the California system, according to press accounts.

Prison officials sought to rebut the allegations of inhumane treatment by holding an open house at the Pelican Bay State Prison. Legislatures and journalists were invited in to look around and, as it were, smell the (lack of) roses.

Prison spokesperson Oscar Hidalgo did not exactly give a ringing endorsement of the prison conditions. He called them “far from what we think is tortuous.”

Assemblyman Tom Ammiano, of the General Assembly’s Public Safety Committee, had a different take. Borrowing a line from the 2008 presidential campaign, he said the Pelican Bay officials’ attempts to dress things up were like “lipstick on a pig.”

That phrase is certainly evocative. But the image of even the most bloated pig does not really capture the reality of the American prison system. Don't think pig; think Leviathan.

Webb Hasn't Given Up On Sentencing Reform

Jim Webb hasn’t given up on sentencing reform. He did announce in February that he’s retiring from the Senate when his term ends next year. In June, however, he published a Huff post essay reiterating the case for fundamental changes iu criminal justice policy and practice.

The talking points are painfully familiar to anyone who follows this under-reported issue. For example, let’s start with this: Why does a country with 5 percent of the world’s population hold 25 percent of the world’s prison population?

As Webb has pointed out, this figure could be taken one of two ways. It could be that we have a disproportionate share of bad actors in America. Or it could be that our criminal justice system is badly broken, so that is no longer able to distinguish between good and bad as it once did.

Which, dear reader, do you think it is? I’ve stated my view repeatedly in this blog for 2 ½ years. But I’d like to know your thoughts too.

Bar Exam Journey II

As soon as the bar exam was over, at the end of July in 1986, I checked out of my motel in Jefferson City, Mo. and drove to Kansas City. Twenty-five years later, I don’t remember exactly where I parked when I got there.

My best guess is that it was in the parking lot of Rockhurst College, where I’d taken the bar review course and stayed in an on-campus dorm while doing so. But it could also have been at KCI airport.

In any case, I didn’t tarry long in KC. My parents were waiting for me in Valparaiso, Ind., where I’d graduated from law school at the end of May. They had driven out from Minnesota, out of the goodness of their hearts, to help me clean out my apartment and get packed up for my move to Kansas City.

Kansas City was where I was due to begin a judicial clerkship at the beginning of August with the Hon. Charles Shangler at the Missouri Court of Appeals.

Changing Minds About Sentencing Policy

How does significant change in a society’s operative perceptions come about?

Heuristic devices for explaining this are not in short supply. A generation ago, Thomas Kuhn talked of the structure of scientific revolutions. More recently, Malcolm Gladwell has popularized the notion of a “tipping point.”

And then there is the noted educator Howard Gardner, who published a book called Changing Minds seven years ago. He offers seven “levers of mind change,” of which the fourth is “representation redescriptions.”

The reason I originally launched this blog 2 ½ years ago was to focus on such redescriptions of a reformed criminal sentencing system. Now real world events (another Gardner lever) like gaping budget deficits increasingly call costly incarceration into question.

Joseph's Dreamcoat Journey: In Prison, Then Out - on a Whim

Sentencing in the Ancient world was often an exercise in arbitrary will. The decision about whether to incarcerate, and for how long, depended almost entirely upon the discretion of those in power.

Inevitably, that discretion was often completely capricous. Witness the experience of the biblical character Joseph – he of the Thomas Mann novel and the Andrew Lloyd Webber musical.

Joseph is framed by Potiphar’s wife on a bogus rape charge, and Potiphar sends him, as the Monopoly phrase goes, directly to jail.

Yet when Joseph proves useful to Pharaoh in interpreting dreams, he is quickly released. Expedited executive clemency, we might call it in today’s parlance.

A Bar Exam Journey

How in the world did I get back to Valparaiso, Ind., after taking the Missouri bar exam in Jefferson City, Mo?

Emotionally dazed and confused after a grueling two days of the highest-pressure exam I’d ever encountered, I left the motel in Jeff City and got into my 1980 Olds Omega. Though this car was only six years old, it had already seen better days. Thankfully, it had somehow gotten me to the exam site on the day before bar, huffing and puffing in the 100 degree heat.

Now it was time to head for Valparaiso, where my parents were waiting for me. I had graduated from law school there in May and left my stuff, such as it was, in the apartment I’d been renting. My folks were there to help me gather it all up and transport it to KC, where I was scheduled to begin a clerkship for the Hon. Charles Shangler of the Missouri Court of Appeals.

Part One of the Jefferson City-to-Valparaiso trip was to return to Kansas City, where I’d left said 1980 Olds Omega in a parking lot at Rockhurst College. Rockhurst had hosted the BAR/BRI bar review course, and I’d stayed in a dorm there in June and July, studying intensely.

The Missouri Bar Exam, Plus 25

Twenty-five years ago I was in Jefferson City, Mo., taking the Missouri bar exam.

It was one of those times in life of heightened awareness, when one knows one needs to be on what Tiger Woods used to call one’s A Game.

As the results turned out, my game was at that level. At the time, however, everything seemed like a matter of mere survival.

As I posted previously, my second-hand car, a 1980 Olds Omega, barely made it to Jeff City, huffing and puffing in the 100 degree heat.

At my motel, I remember trying to relax a bit in the evenings by watching TV news. For me, the two main stories were the Supreme Court confirmation hearings for Antonin Scalia and the status of the World Football League’s antitrust lawsuit against the NFL.

The fact that both of these stories were legal in nature shows, I suppose, how immersed in the law I was in that summer of ’86.

Bono's Prayer for Burma

As a preacher’s kid who is married to minister, I’m no stranger to prayer.

In Boise, during my wife’s internship year (1996-97), I was a member of a prayer chain. We called each other when a concern was on someone’s heart — and took it to the Lord in prayer.

A year later, when my own mom was stricken with a life-threatening auto-immune disease, I prayed practically without ceasing for her recovery. And I put the word out for more prayers wherever I could.

To me, the power of prayer is palpable. As C.S. Lewis, as played by Anthony Hopkins, said in the film Shadowlands, even if prayer doesn’t change the immediate outcome, it changes the one who offers the prayer, deepening his or her heart.

When my wife and I attended the U2 360 concert last month at Spartan Stadium in East Lansing, Michigan, I wasn’t really expecting to pray. Yes, I’d gone to see the film U2 3D, and so had an inkling of how religious, or quasi-religious, a U2 concert can be.

But still, Bono’s passionate prayer for the release of political prisoners in Burma took me by surprise. It was one of the most fervent petitions I’ve ever heard offered, in any circumstances. Though it wasn't overtly offered to the Judeo-Christian God, it was nonetheless a prayer.

It’s true that Jesus said, at one point in the Gospels, that when you pray you should go to your own room and shut the door. Yet I feel sure Jesus would make an exception for this prayer offered by a crowd of 60,000 people in a football stadium on a beautiful summer night.

I will write about Amnesty International's efforts on behalf of Burmese political prisoners in an  upcoming post..

The Absence of Crime Coverage in the Columbia History of the World

The Columbia History of the World was a landmark book. Published by Harper & Row in 1972, the book presents a sweeping survey of notable events from the dawn of time to what it calls "the brooding present."

I was given a copy of the book in 1991 by Don McCloskey, after serving as a teaching assistant in his Western Civilization survey course at the University of Iowa. (Don subsequently became Deirdre and published a book about gender crossing, but that is another story.)

This morning I glanced through the Columbia history, looking to see whether it tackles issues of incarceration and punishment. The answer, interestingly, is no.

In nearly 1200 pages of text, there is virtually no discussion of how societies have dealt with crime. Clearly the contributors (edited by John A. Garraty and Peter Gay) wanted to stay on the high road. And so, in an extensive 63-page index, there are 11 references to the Italian humanist Petrarch, but none for prison, punishment or incarceration.

There is, of course, considerable coverage of slavery. How could there not be, given the importance of the theme of history in world history?

To be sure, you can't take on every topic in a sprawling survey such as this. But still, how could crime and punishment be so overlooked?

Peter Gabriel's Anthem for the Vocational Journey

Peter Gabriel’s  Don’t Give Up, a 1986 duet with Kate Bush, has always inspired me.

In the late 1980s, as I searched for a place to use my law degree after my judicial clerkship ended, I used to listen to the song over and over again.

Somewhere there’s a place that each of us belong. The timetable for finding – or creating – it is unpredictable. But, as the sports slogan goes, you gotta believe you’ll get there.

Bruce Cockburn Music as Bar Exam Study Aid

Twenty-five years ago, I was studying for the Missouri bar exam. Even after all this time, it remains a touchstone experience for me.

My base of operations, from the beginning of June until the middle of July, was Rockhurst College in Kansas City, which was hosting the BAR/BRI review course. The exam was scheduled for the end of July in the state capital, Jefferson City. My judicial clerkship, with the Hon. Charles Shangler of the Missouri Court of Appeals, would follow in due course.

I had graduated from Valparaiso University School of Law in May, and my parents had given me a Sony Walkman to celebrate the occasion. That's right - a Sony Walkman. Strange as it may seem, in this I-pod / I-pad world, the Walkman was once a state-of-the-art way to play recorded music.

During breaks from bar exam study, I would listen over and over on my Walkman to Bruce Cockburn's latest album, World of Wonders. I'd purchased the cassette tape at a mall in Merrillville, Ind. before leaving Indiana for Kansas City.

Today, opening up my e-mail again after an off-the-grid vacation week, there were two messages that reminded me of the Bruce Cockburn backdrop for my bar studies. One was an e-vite to a 25th anniversary reunion of my law school class.

The other was a notification on Facebook that a friend had tagged me in a post about the Bruce Cockburn postage stamp recently issued in Canada.

Thanks, Rick, for the heads-up about the stamp!

Unemployment Up, Crime Down: Why?

Why have American crime rates gone down as unemployment rates have gone up?

James Q. Wilson's recent essay in the Wall Street Journal explores this intriguing question.

The factors in play are many. They range from the sociological (the incapacitation effect of extensive incarceration) to the environmental (the decrease in lead in the atmosphere).

Better, data-driven policing can rightly take some of the credit. Targting  empiricallly identfiable crime hot spots for a stronger law enforcement presence has been shown to reduce crime in those areas. Some of this reduction, however, is offset by increases in other areas.

And then there is the matter of drug use. For two decades, crack, heroin and other hard drugs have taken a terrible toll, particularly on the black community, in lethal street violence, fatal overdoses and widespread imprisonment. It may be that a younger generation is finally learning hard truths from these consequences.

Wilson rightly ends his essay on a humble, Socratic note. Criminologists, he argues, should admit they don't  have all the answers. Such an admission, as Socrates showed, can be the beginning of wisdom.

Harry Potter and the Presumption of Innocence

Even those who have not read the Harry Potter books, or seen the movies, know that the tone grows relentlessly darker as the series unfolds.

I was reminded of this tonight as I started Book Four, "Harry Potter and the Goblet of Fire," which begins with the discovery of three murder victims. It's like opening an adult Whodonit novel, compared to the usual high-satire of the Dursley's that earlier books begin with. J.K. Rowling could easily have eclipsed Agatha Christie, one suspects, if she had chosen to write in this genre.

In describing the murder scene involving three members of the Riddle family, Rowling also convincingly sketches a scenario showing why the presumption of innocence is needed in criminal cases. When Frank Bryce, the Riddles' gardener, is arrested, public opinion in the village of Little Hangleton soon swings against him. But when new evidence emerges, the unproven (and very possibly erroneous) nature of the assumption of Bryce's guilt is unmasked.

If the new evidence had not come to light, however, it's hard to see how Frank Bryce could have found an impartial jury anywhere in the vicinity of Little Hangleton.

Up To Date In Kansas City, Summer 1986

The temperature hit 102.9 degrees Fahrenheit today in the Twin Cities (39.4 Celsius). Bizarre, for this time and place. What is the import of this whim of Mercurius?

The easy answer, I suppose, would be global warming. My topic in this post, however, is not suspicions about manifestations of climate change.

It is, rather, an occasion to recall those balmy summer nights in Kansas City in 1986 as I studied for the Missouri bar exam. To someone reared in South Dakota and Minnesota, those June and July days in KC were at times oppressively hot. The nights, though, after my evening bar review course let out, were beautiful.

The heat of the day had abated and I had done my bar exam study. This meant I was now free to enjoy the rest of the evening in an intriguing new city - the one which the cowboys in Rogers and Hammerstein's "Oklahoma" had sung of as being all up to date.

What the Parole Board Had For Breakfast

The phrase "you are what you eat" has become drastically watered-down in contemporary American parlance. It is now more or less synonymous with "eat your vegetables."

But to materialist nineteenth-century thinkers, saying "you are what you eat" was like a call to arms against idealist mumbo-jumbo. "Mann ist was mann esst," went the play on words in German.

The idea was that even ideas themselves do not spring immaculately from an amorphous, pristine realm of spirit that humans access through their minds. Thoughts, the argument goes, are merely the by-products of purely physical processes, with each of us caught in an unbreakable causal chain.

Dostoevsky rightly railed against this type of deterministic, linear explanation of human behavior. For after all, to describe human actions as merely the inescapable consequences of external stimuli is to deny free will. Humans, in short, are not Pavlov's dogs.

From our 21st-century vantage point, however, it would be naive to deny that those external stimuli can play a powerful role in affecting decisions. As Al Gore pointed out in The Assault on Reason, there are numerous factors that can get in the way of rational decision making.

For legal decisions, the "legal realists" who came on the scene in the 1930s asserted that those factors often include a judge's personality.  The notion was that "law is what the judge had for breakfast,"as one of my law professors put it to me at Valparaiso in the mid-80s.

I was reminded of this two weeks ago, when a newspaper columnist named Chuck Shepherd reported on a recently released research study of parole decisions.  According to the lead researcher, Prof. Jonathan Levav of Columbia University, there are spikes in the granting of parole after lunch or snack breaks. But parole gets harder and harder to get as morning or afternoon sessions grind on.

Humans aren't Pavlov's dogs, but food does influence people's moods - and that cannot help but affect decisions at times. To say that isn't to accept hardcore nineteenth materialism; it's simply to acknowledge human limits.

Word of God Speak - Even in Prison

Two weeks ago, I worshipped with New Beginnings Church at the Colorado Women's Correctional Facility. I was there in Denver with other members of the board of Prison Congregations of America, which helps facilitate the founding of congregations like New Beginnings.

One of the centerpieces of the two-hour within-the-walls church experience was the song Word of God Speak. It was familiar to me from contemporary worship services I've attended in recent years.

It's a wonderful song inside the walls or out. Some of the words, however, carried extra depth when sung from the depths of prison.

"To be still and know
That You're in this place
Please let me stay and rest
In Your holiness
Word of God speak"

The simple words and gentle music indeed helped us all know that God was. is, and will be in that place - and in all places where people are sent as punishment.

3 Strikes and You're Out is Not Immutable

In Apple Valley, Minnesota, second graders at bat in their youth baseball league get five strikes, not three.

Even in baseball, the rule of “three strikes and you’re out” is not immutable.

This point needs to be considered when evaluating California’s notorious “three strikes” law that sends those convicted of a third felony to prison for a sentence of from 25 years to life. Even if the third offense was shoplifting.

A Stanford law professor, Michael Romano, calls it “the worst criminal law in the country.” I think he’s right.

Derek Boogard: Split Personality?

In Newjack, his account of working as a guard at New York's Sing Sing prison, Ted Conover writes of the travails of corrrectional officer work.

Being "society's proxies," is a difficult job. Conover recounts a story of the ice-breaking joke told by a trainer to the cadets seeking to become COs in the New York State system in the 1990s.

"What's the first three things you get when you become a CO?" the trainer asks. The punchline was: "An car. A gun. A divorce."

Gallows humor, to be sure. The (relative) financial security represented by the car comes from excersing power (the gun) in a soul-sapping system of incarceration. The relentless cops-and-robbers role-playing takes a toll not only on the officer, but on his or her family. Hence the inclusion of divorce in the bitter joke.

I was reminded of this Conover material when reading press accounts over the weekend of the death of Derek Boogard, the former on-ice enforcer for the Minnesota Wild hockey team. According to the Star Trib, the guy was a sweetheart off the ice.

On the ice, however, he took on the role of tough guy. Boogard scored only three goals in his six-year career. But he carved out a niche for himself as a fighter in a fast, violent sport - a niche that his skating and puck handling skills alone would not have merited.

Boogard was found dead in his Minneapolis apartment at the age of 28. Though his history of history of concussions may have been a factor in his untimely death, the press also reported that he had entered the NHL's substance abuse program.

What follows is purely speculation on my part. But could it be that Boogard had trouble squaring his on-ice fighter role with the good guy he sought to be in every other realm? If so, Boogard's problems with substance addiction may have reflected a split personality in need of integration.

Trust Within the Walls

“Trust, but verify,” was President Reagan’s shorthand phrase for his stance in nuclear arms control talks with Mikhail Gorbachev.

A generation later, as applied to American airport security, the phrase is need of amendment. Verify, yes — but there’s no trust.

A week ago, I experienced this trying to get through security at the Denver airport. I was pulled out of line, an officer opened my carry-on bag, and my shampoo was confiscated. Because I don’t fly all that often, I had inadvertently violated the “3-1-1” rule put in place at some point after the 9-11 terrorist attacks.

3-1-1 stands for 3 ounces of liquid, packed in 1 clear plastic, with no more than one bag per person.

The officer who opened my carry on and took my shampoo was respectful. But it was weird to be in a position where the entire relationship was premised on the absence of trust. That is the very opposite of relational dynamics under which most of us try to live our lives.

The experience did, however, help me understand better what it must be like to be in prison. Being an inmate must be somewhat like going through airport security 24/7, every day for months and years on end.

In this sense, my encounter with Denver’s strict airport security was a fitting conclusion to my trip to attend the spring board meeting of Prison Congregations of America. For PCA seeks to break down the walls of mistrust within the walls of correctional institutions by creating Christian congregations among inmates.

Lee Baca Raises the Education Bar

"A mind is a terrible thing to waste," went the old tagline for the United Negro College Fund. It dates me a bit, I realize, even to remember those long-ago TV commercials.

The truth of the statement, however, remains unalterably true. Indeed, it is truer than ever, given how closely tied job prospects  have become to educational attainment.

For that reason, one of the nation's most prominent law enforcement officers has become the champion for putting in place programs for inmates to get a better education. As NPR recently reported, Los Angeles County Sheriff Lee Baca in instituting an Education-Based Incarceration Initiative to promote intellectual development among prisoners in his 160,000-inmate jail system.

The program is now in a beta phase, with about 2,000 inmates testing an ambitious curriculum. The areas of instruction range from traditional subjects like reading, writing, and science to life skills and decision-making. The instruction is intended to help inmates progess to more adult levels of thinking, in which they make better choices and commit fewer new crimes.

Jail is, admittedly, a rather unlikely setting for a renewed emphasis on education. For one thing, jail stays tend to be quite short compared to prison sentences. But Baca clearly believes that improved education has to start somewhere, if we are ever to make real progress in reducing the recidivism rate.

As NPR said in its clever headline, the sheriff is attempting to teach inmates to get out of jail. Not by physical escape, but by an education that is the key to the future.

Moses: Ex-Offender in a Grand Narrative

Cecil B. Demille's  film The Ten Commandments is still a grand cinematic event, even on the small screen, 55 years after its first release.

To ironic, postmodern senibilities, suspicious of any attempt at "grand narrative," the film's sweeping historical claims are not sustainable. And indeed, one cannot help but detect Cold War influences in Demille's grandiose presentation.

This is especially the case, for example, when the off-screen narrator asserts in a booming, not-be-questioned voice that the Exodus of the Israelites from Egypt marked the Birth of Freedom into the world. I interpret this as Demille's response to the climate of McCarthyism that pervaded the 1950s, when fears of godless communism were irrationally strong. At such a time, the Judeo-Christian tradition seemed to offered a bulwark of defense against the officially atheist Soviet Union and its competing grand narrative of Marism-Leninism.

What I was most struck by, however, as I watched the film on Saturday in Holy Week, was its depiction of the story of Moses as the story of the rehabilitation of an ex-offender. This is an aspect of Moses' weighty historical persona that is not as widely known as it should be. But it is a timely one, because ex-offender reentry is one of the major issues our society faces in this age of mass incarceration.

The Book of Exodus, Chapter 2, mentions Moses' killing of an Egyptian overseer and his flight from Pharoah's wrath into the land of Midian. In Chapter 3, God appears in the Burning Bush. After some complicated, heart-to-heart negotiations with God, Moses returns to Egypt in a new role: not the privileged prince, not the wanted felon, but spokesman for an emerging people seeking justice.

Charlton Heston, who plays Moses in an iconic role, was widely known later in life as the face of the National Rifle Assocation. But I suggest that Heston's image could be recast. His Moses is an inspiring example of an ex-offender who turned his life around and built community.

Pray for Bin Laden ... and Everyone Else

Reaching for the snooze button on my alarm-clock radio, I heard news that would send me back nearly ten years.

It was a bright, beautiful September morning, I was sitting in my car in the Shopko parking lot; I needed a binder. I remember being shocked; telling myself that what was being said on the radio was a bad comedy skit by a couple of misguided radio hosts. Sadly, it wasn’t. There was an “accident” in New York.

It wasn’t too shortly thereafter I remember first hearing the name Osama Bin Laden.

On a chilly May morning, nearly ten years later, the news crackling through the radio told me that Osama Bin Laden was dead. My reaction wasn’t what I anticipated. Not at all.

I figured the news of Osama Bin Laden’s death would bring me elation; a sense that justice had finally been served on the man who planned the deaths of nearly 3,000 innocent men and women. Instead, I prayed. I prayed for his soul. I prayed that he had an opportunity to repent of his life’s sins. Only a day after the Feast of Divine Mercy, I prayed that he found and trusted in the love and mercy of our Lord.

As I thought more about my unanticipated reaction it started to make more sense. We are to pray for our brothers and sisters, especially those that would do us or others harm – in other words sinners. I guess more clearly stated, everyone; we are to pray for everyone. Those in Guantanamo, those in prison, those with addiction, those who gossip…the list goes on.

But mostly I thought about those who harm others, and not just the Bin Ladens of the world. I thought about how much they need our prayers.

I thought of the profound effects of prayer. Conversion. Repentance. Grace. Mercy. I thought about Abby Johnson’s story; how she went from running an abortion center to being welcomed with open arms into the Catholic Church. How through prayer, those who engage in or support (explicitly and/or implicitly) the genocide – when you reach tens of millions lost, this word seems appropriate – of the unborn through abortion may come to a moment of conversion and ask for and receive forgiveness.

If St. Paul can convert, we all can.

The Lord told Saint Faustina that he was a God of mercy, not judgment. May we all trust in the mercy of the Lord.

St. Faustina, pray for us.

St. Therese of Lisieux, pray for us.

Blessed John Paul II, pray for us.

The Limits of Self-Expression

Paging though an old notebook tonight, from reading that I did in 1998, I came upon a quotation from Abraham Joshua Heschel that made me realize the limitations of this blog.

In Idols in the Temple (1962), Heschel wrote: "If self-expression is the only goal, it can never be achieved. The self gains when losing itself in the not-self, in the contemplation of the world, for example. Self-expression depends upon self-attachment to what is greater than the self."

When I read these words, I felt an implicit critique of my creative stance toward this blog in the 2 1/2 years I've been writing it. It's been primarily about my own self-expression, and only secondarily about seeking a viable forum for dialog about criminal justice reform.

Having felt the weight of the great rabbi's words, I shall endeavor to position my blog as a more useful vehicle for engagement with the world. This will include enewed emphasis on sentencing reform, as well as on the work of Prison Congregations of America, on whose board I serve.

Bowie's Pilate Makes a World-Weary Case for Deterrence

David Bowe’s postmodern Pontius Pilate, in Scorcese’s film of Kazantzakis’ Last Temptation of Christ, is a world-weary, ironic figure. After his half-hearted interrogation elicits little from the arrested Jesus, Pilate sits down on the stone bench next to his prisoner.

Trying to get Jesus to see Roman reason, he points out that any insurrection, real or imagined, is punishable by death on the cross. The accumulating skulls at the execution site, known as Golgotha, are supposed to deter any form of rebellion, whether spiritual or political.

Three thousand of those ought to be enough, Pilate asserts, for the occupied Jews to give up all hope of challenging entrenched Roman power.

Jesus remains unmoved and Pilate does not even both to ask, as in the Gospels, What is Truth? Instead, Pilate allows Jesus to be brutally beaten and taken out to The Place of the Skull.

Fortunately, in this case, deterrence did not work. The death and resurrection of a man condemned as a criminal redeemed the world.

Born Free? Not Here, For Those in Chains

Class consciousness is not Americans’ strong suit. In a country founded by overthrowing royal rule, we like to subscribe to the myth that most of us are middle class.

George Washington and the others did succeed in casting off King George. But of course the country was not born fully free; the slaves remained in bondage, despite the Constitution.

Today, there is another sense in which, to paraphrase Rousseau, people are often born in chains in the self-styled Land of the Free. The mass incarceration of the past thirty years has especially impacted those at the bottom of the economic order and kept them behind bars.

Bruce Western and Becky Pettit discuss this phenomenon in their essay in Daedalus on “Incarceration and Social Inequality.” Mass incarceration, they point out, “deepens disadvantage and forecloses mobility for the most marginal in society.”

In that sense, I would argue, mass incarceration is profoundly anti-Christian. Jesus came to proclaim a preferential option for the poor. But we have come to accept deep, entrenched poverty that tends to perpetuate itself from generation to generation.

To be sure, crime does involve personal choices, not merely social structures. But those choices are exercised in a culture in which the odds are against those from the lower economic depths.

Sex Offenders in Minnesota

I have not written often enough about sex offenders in this blog.

After all, sex offenders comprise almost a third (31 percent) of Minnesota’s roughly 9500 inmates. And that percentage is only of the prison population. The substantial civil commitment contingent up at Moose Lake isn’t counted in the criminal numbers.

Recently, the Star Trib has tried to initiate a debate about the sex offender civil commitment program’s effectiveness — or lack thereof. The sticker price is high ($120,000 per year) and the results are questionable (virtually no one has ever been released).

Gail Rosenblum’s column offers illuminative context on the debate. She points out that respected researchers are trying to transcend the typical labeling of sex offenders, Instead, it may make more sense to focus on the commonalties that those convicted of sex offenses share with all other offenders.

Self-Selection in the Suburbs on Sunday Morning

After Daedalus devoted its Summer 2010 issue to the phenomenon of mass incarceration, I decided to start subscribing to the journal.

I did it the old-fashioned way, by sending in a check. So it took a while before my first issue arrived.

Now, however, I’ve received the Winter and Spring issues, a two-part exploration of Race in the Age of Obama. The editors have assembled over 400 pages of learned discussion, by some two dozen authors, on many different aspects of the status of race in American society.

Perusing the titles tonight, I was reminded of just how suburban my life has become. At work, I interact regularly with colleagues from diverse racial backgrounds. Yet in my private life, including my church life, I am so often insulated from a proper awareness of racial dynamics by the lulling effect of white suburbia.

Why is Sunday morning the most segregated time of the week? There is nothing new about this reality. But it's important to keep asking the question.

CSI: The Cross

On Tuesday in Holy Week, my son Micah and I attended a one-hour class on first communion. Shepherd of the Valley, an ELCA Lutheran congregation in Apple Valley, Minn., aims this class at fifth graders. Others are welcome, however, including children younger than fifth grade who seem ready to receive the Lord’s Supper and have parental permission to do so.

The kids were full of questions about many different aspects of the Eucharist, from the grand-theological (Why did Jesus die?) to the nuts and bolts practical (Where do you get the bread?). After the questions were duly noted on a whiteboard, Pastor Randy Brandt ran through short answers to each one.

I’m titling this post “CSI: The Cross” because one question the children asked was, “How did the Cross cause death?” Pastor Randy’s answer was that, with the arms nailed to the cross-beam, it becomes increasingly impossible to breath. It is a slow death by asphyxiation — a form of torture that the Romans intended as a brutal deterrent to any rebellion against their occupying rule.

Palestine, under Roman rule, had no prohibtion against cruel and unusual punishment.

A Police Presence at a Suburban Target

A suburban SuperTarget, at 8 p.m. on a week night. My son and I pull up in our minivan, listening to the baseball game on the radio.

We’ve parked in this large lot countless times before. This time, however, the scene is a bit different. Three Apple Valley police vehicles are parked in front of one of the two entrances to the store.

Presumably the police presence was to investigate a report of shoplifting?

Turn the Titanic Around

The term “turn the Titanic around” is a curious one. After all, the original Titanic famously didn't get turned around in time.

The phrase implies, however, a sense not necessarily of impending fatality, but of hope. Thus the pop singer Amy Grant, imploring her lover to remember that “it takes a little time to turn the Titanic around.”

What’s true of an individual romance is also true of a major societal problem, Humans alone, among all the animals, have the capacity to imagine a different future. A future in which the Sword of Damocles does not fall, in which the Titanic does get turned around in time.

So it will be, I hope, with the problem of mass incarceration in America. The ridiculous, life-crushing extent of our prison predilection — and the need to reform it — is the constant theme of this blog.

Minnesota: Land of 10,000 Ponzi Schemes?

For years, Minnesota styled itself as the Land of 10,000 Lakes. Not surprisingly, there were numerous humorous variations, such as Land of 10,000 Potholes or 10,000 Mosquitoes. But there really are a multitidue of lakes, and the slogan still signifies the abundance of water in this state.

Do we also have an abundance of financial crime? Eric Wieffering, an astute financial columnist for the Star Tribune, wrote a piece last month exploring the notion that Minnesota has become the Land of 10,000 Ponzi Schemes.

The names that came up, as Wieffering briefly summarized a dozen or so high-profile cases, started of course with Tom Petters and Denny Hecker, both of whom are now serving lengthy prison terms. But the list also includes Trevor Cook, Charles E. Hays, Kalin Dao and many others.

Is there really more fraud in Minnesota than elsewhere in the country, or does it just seem that way? Hank Shea, who led the U.S. attorney’s financial crime unit for many years, thinks not. In his view, the level of fraud in Minnesota doesn’t differ markedly from mo0st other places.

In fact, Wieffering concludes, our relatively clean image is what led out-of-state interests to set up companies called St, Paul Venture Fund, Minnesota Venture Capital, Inc., and Real Estate of Minnesota, Inc. Those companies are now facing civil charges brought by federal securities regulators. But the companies have to do with Minnesota in name only.

Spending a Fortune to Incarcerate, But a Pittance to Rehabilitate

The scale of the correctional Leviathan in California is truly staggering.

Joan Petersilia recites some of the round numbers in her essay in Wilson Quarterly’s recent issue on mass imprisonment. 170,000 prisoners being held, at about $50,000 per prisoner per year, leading to $10 billion in annual costs.

In some ways, however, the most disturbing figure is one that is small, not large. California spends less than $3,000 per inmate per year on rehabilitation. Only half of released inmates have participated in any type of program during their time in prison.

To be sure, prison programming cannot be expected to work miracles, especially when broad sociological trends are at work. After all, with skills at a premium in the global economy, it becomes harder and harder for low-skilled ex-offenders to get jobs.

Yet governments have added to the challenges of prisoner reentry into society by passing broad laws excluding all ex-offenders from certain fields, such as education and health care.

Understandably, no one wants a dangerous ex-felon working as a home health aide, or a convicted sex offender taking care of children. Unfortunately, though, the laws impacting ex-offender employment have not been narrowly tailored to achieve those ends.

All in all, these are ingredients in a recipe for recidivism. It should scarcely be surprising that so many people return to prison after release, either for parole violations or new crimes. It’s the well-worn path of least resistance.

Socrates, Martha Stewart, and the Definiton of Right Conduct

Plato composed The Republic nearly 2500 years ago. Yet the questions about right conduct that it raises are as timely as today's headlines and Twitter feeds.

In the first section of the dialog, Socrates takes aim at the ethical inadequacy of conventional views of justice. The first of these to be explored is the notion that justice consists in telling the truth and paying one's debts.

Socrates finds much lacking in this view. But even the minimal conception of justice it expresses is at odds with major trends in an American landscape littered with failed Ponzi schemes and a compendium of ethical lapses.

To catalog the scope of the contemporary problem, financial journalist James Stewart has published a book called Tangled Webs: How False Statements Are Undermining America: From Martha Stewart to Bernie Madoff.

Socrates, one suspects, might have found a way to talk Martha Stewart out of her plans for insider trading. He would surely have also been impervious to the pecuniary lures of Madoff's investment fraud.

The Hinckley Case, Still Unfolding

On March 30, 1981, a disturbed man named John Hinckley Jr. shot and wounded President Ronald Reagan, as well as Reagan’s press secretary, James Brady. Thirty years later, the case continues to influence debate about the insanity defense and gun control.

President Reagan survived the assassination attempt, and eventually recovered from the stomach wound he received.

James Brady was paralyzed after being shot in the head. He and his wife Sarah became passionate advocates for gun control. With remarkable perseverance, they are still at it, three decades later.

A Secret Service agent and a District of Columbia police officer were also wounded by Hinckley’s attack.

Today, at age 70, Mr. Brady appeared at a news conference on Capitol Hill. From his wheelchair, with Sarah beside him, he called once again for more effective gun control legislation. The Bradys also met with President Obama at the White House, seeking to enlist his support.

Hinckley was found to be mentally ill and remains in a mental facility in Washington. Now 55, he is permitted by the court to take fairly frequent furloughs from the mental facility to visit his mother in Williamsburg, Va. In the last year and a half, he has been granted a dozen furloughs, during which is monitored via a GPS-equipped cell phone.

Even more controversial than the furloughs was the verdict at Hinckley’s trial in 1982. The jury found him not-guilty by reason of insanity. This led to a furious debate in legal circles and the public at large about the legitimacy (or not) of the insanity defense.

In my first-year criminal law class at Valparaiso University School of Law, Prof.Bruce Berner used the case as an example of how seriously juries tend to take their work. In the abstract, it may be easy to dismiss the insanity defense as hokum. It’s quite another, however, to be there in the jury box, with someone’s life in your hands.

Incarceration of the Masses

Philosophy beings in wonder, Socrates famously said.

Two millenia later, Descartes said it begins in doubt.

I have Socratic wonder at the enormity of American incarceration, as well as Cartesian doubt.

Two years ago, when introducing his proposal for a criminal justice reform commission, Senator Jim Webb asked it this way. Are Americans more evil than virtually every other people in the world, justifying such high incarceration rates? Or has our sentencing and corrections system gone terribly wrong, locking up people who really dont' need to be behind bars?

To my mind, the latter is true. Due to an out-of-control drug war and other ideological factors, the American prison population is preposterously high. Prison used to be reserved for the worst of the worst. Now, among the lower depths of the population, it's an expected rite of passage.

This is a plea for recovery of the ability to be shocked, and to ask the right questions again. "To be surprised, to wonder, is to begin to understand," wrote Ortega y Gassett in The Revolt of the Masses. By expressing my surprise at a society that puts 2.3 million people in jail or prison , I am trying to understand.

Beyond Foucault's "Detestable Solution"

When will there by something new under the sun in the theoretical underpinnings of criminal sentencing?

Michel Foucault wrote Discipline and Punish 35 years ago. The book probes the emergence of the modern prison at the turn of the eighteenth and nineteenth centuries. Foucault links this emergence with the exercise of a new type of class domination that also extended outside prison walls, to institutions such as factories.

Prisons themselves were not new; they had existed for centuries. But around 1800 in the West, Foucault argues, they became mechanisms of a new form of class power. Detention colonized the field of correctional options and became the "penalty par excellence." In doing so, it "banished into oblivion all the other punishments that the eighteenth-century reformers had imagined."

Rereading Foucault's account of this, I was struck by his use of the rhetoric of banishment to describe the ascendancy of the prison as a way for society to respond to social conflict. No one ever imagined how ascendant the prison would become in the United States. Indeed, one suspects that even Foucault himself would be surprised by how common going to prison has become among people at the bottom of the social ladder. He died in 1984, before the American prison boom had really taken off.

Even when prison emerged two centuries ago as the dominant correctional paradigm, it seemed to do so almost by intellectual default. "It seemed to have no alternative," Foucault wrote in the mid-1970s, "as if carried along by the very movement of history."

Why do we continue to rely so heavily on prison as a response to crime? Foucault called it dangerous and useless; today, in America, one would have to add expensive. Yet we have lacked the vision to create a system to replace it Instead, prison remains, as Foucault said, "the detestable solution," which we have been unwilling or unable to give up.

I'm hoping that the Christian gospel can open our eyes to alternatives to the prison paradigm. After all, Jesus Christ boldly promised to make all things new. And unliked Foucault, Jesus did more than merely write about the powers that be. He confronted them, even when it meant a criminal's death.

Indiana Considers Sentencing Reform

In 1999, the conservative scholar John J. Dilulio published a Wall Street Journal op/ed piece on incarceration rates. Its thesis was clearly stated in the title: “Two Million Prisoners Are Enough.”

Yet for the next decade, incarceration continued to increase. The figure of two million people in jail or prison grew by another 300,000 nationally, to a total of 2.3 million. The cumulative state tab for this has more than quadrupled since 2000, from $12 billion to $52 billion.

Add in those on probation or parole and the round number is now an astonishing 7 million Americans under correctional supervision.

In today’s straightened economic circumstances, keeping so many people under correctional control is becoming less and less sustainable. The Great Recession has already had a profound impact on American life, and is likely to continue to do so for a long time. Prison beds are by no means immune to the ongoing financial pressure states are under.

Developments in the state of Indiana provide a case in point. From 2000 to 2009, Indiana’s prison population grew by 41 percent. Analysis showed that the increase was due not to more violent crime, but to an influx of drug addicts and low-level, non-violent offenders.

Indiana is now trying to turn this situation around. Governor Mitch Daniel’s proposal to give judges more discretion to tailor shorter sentences for non-violent offenders was lauded in a New York Times editorial and is supported by the Pew Center on the States.

How this sensible proposal will play out in the rough-and-tumble of a legislative session is anyone’s guess. Could it be that financial necessity will be the mother of invention? We’ll have to stay tuned as the session unfolds.

A St. Paddy's CLE on the State of the Intoxilyzer

For better or worse, St. Patrick’s Day is strongly associated with drunk driving. The beer or other beverages may or may not be green, but they do flow.

So it was a most appropriate day for a continuing legal education (CLE) event on the status of a controversial device used to measure blood-alcohol content of people suspected of driving drunk. Over 4000 Minnesota DWI cases have been put on hold in the last five years amid challenges to the device, called the Intoxilyzer 5000EN.

The two CLE presenters were from a forensics firm hired to analyze the “source code” embedded in the Intoxilyzer. They stuck closely to their public report to the court in the consolidated case challenging law enforcement’s use of the device to measure blood-alcohol content.

This reticence was understandable because of last week’s court ruling in that case. Judge Jerome Abrams’ order in Scott County District Court upheld the reliability of the Intoxilyzer as evidence. But that ruling is now on appeal.

It is unclear how this appeal will proceed. Marsh Halberg, one of the leaders of the defense attorney coalition, told the Star Tribune that they may seek special permission from the court to appeal as a group. That would certainly make the logistics earlier, compared to individual appeals in 69 different counties.

With this appeal (or appeals) in the offing, however, the CLE presenters kept questions to a minimum. In fact, the only question posed by the participants was from Dakota County Attorney James Backstrom. He asked when a newer device, called the Datamaster, is expected to replace the Intoxilyzer statewide. About six months, came the answer.

The Absurdity of Prison Crowding

I've forgotten exactly how Camus defined "the absurd."

But seeing pictures in Daedalus and Wilson Quarterly of triple-bunked inmates leaves one reaching for those words.

And then there's California, which has gone beyond absurd to downright ludicrous and unconstitionally cruel.

Bubbles Do Burst

Veteran corrections scholar Joan Petersilia contributes the first essay to The Wilson Quarterly's examination of America’s bloated correctional system. WQ’s Winter 2011 issue features a gaggle of orange-clad inmates on the cover, with this headline:

The Seven Million: How to Shrink America’s Criminal Population

Petersilia, a law professor at Stanford, offers an essay entitled Beyond the Prison Bubble. She begins by noting that the national number of people behind bars has increased for 37 years in a row.

Yet the very title of her piece contains an element of hope. Bubbles, after all, do burst eventually. And when they do, it’s never the same again.

Reform Needs a New Champion

Senator Jim Webb announced a few weeks ago that is leaving the Senate after only one term.

What will be the fate of his proposal for a national criminal justice reform commission, once he's gone?

I, for one, hope the idea finds a new legislative champion. Sentence Speak, a blog hosted by Families Against Mandatory Minimums, remains hopeful as well.

3 Rs: Recidivism, Re-entry, and Reinvestment

Recidivism is usually defined, in corrections circles, as a prison inmate being rearrested for a new offense within a given period of time.

Measurement methods vary, but historically the rearrest rate has been quite high. Take, for example, the recent New York Times article on state-level efforts to help ex-inmates to find jobs upon release. The recidivism rate given there is 2 of every 3 released inmates within three years.

States have much to gain, though, by investing money in offender re-entry. As the Times piece points out, it costs about $35,000 to incarcerate someone for a year - more than it takes to send someone to the University of Michigan.

Following

The word "following" has become a widely accepted term of art in 21st-century social media circles. On Twitter, in particular, you can follow someone's posts merely by signing up for them, without any action of assent by the person being followed.

Social media has many benefits. In Tunisia, for example, and again in Egypt, the platform provided by Twitter helped opponents of the regime to organize more effectively - and therefore helped topple the government.

Let's not forget, however, the potentially voyeuristic associations of "following." Christopher Nolan's darkly lit film by that name, from 1998, is a stark reminder of this.

A protagonist without a stable sense of self starts randomly following people on the street. This soon shades into a string of burglaries motivated not so much by money as the creepy thrill of impermissibly breaking into and entering other people's private places.

It's film noir all the way, but it's not darkness for darkness sake. It's a cautionary tale about the seemy underside of the phenomenon of "following."

Arrest!

I've never been arrested.

But I can recognize similar accounts of it when I hear them - from two quite different political dissidents, of different genders, in two quite different times and places.

Tonight on the public radio program The Story, Egyptian writer Nawal El Saadawi told of her experience of being suddenly arrested by Egypt's authoritarian regime. It was thirty years ago, but the experience was clearly a seering one - yanking her out of her illusionary comfort zone and thrusting her into the bracing reality of prison.

In prison, she was confined next to prostitutes who lent her the rudimentary writing materials (such as toilet paper) she used to keep writing.

I was struck by the eerie congruence between her description of being arrested and the one given by Aleksandr Solshenitsyn in the very first chapter of his monumental Gulag Archipelago.
"Need it be said," Solzhenitsyn asked, "that it is a breaking point in your life, a bolt of lightning which has scored a direct hit on you?"

Solzhenitsyn's answer to his own rhetorical question would surely resonate with El Saadawi and others who have been arrested unexpectedly. He describes arrest as "an unassimable spiritual earthquake" with consequences so severe that some people go insane.

The natural reaction, then, is to hold on, as long as possible, to the previous reality - as summed up in Solzhenitsyn's patheticly innocent question, "Me? What for?"

Looking Back on Baghdad and Paths Not Taken

Pure, unmitigated, raucous, ecastatic joy on the streets of Cairo. The soldarity of the people deposed an entrenched strongman who had spent nearly 30 years consolidating his power.

Could it have been like this in Iraq?

Both President Bushes made sure this would not happen.

In 1991, following the American-led ouster of Iraqi forces from Kuwait, much of Iraq rose in revolt against Saddam Hussein's dictatorial rule. Yet George H.W. Bush, as commander-in-chief of U.S. forces, allowed Hussein to send helicopter gunships to suppress the uprising.



Twelve years later, George W. Blush recklessly blundered into an Iraqi intervention with planning so non-existent as to be criminally negligent. As Garrison Keillor noted, he was like Melville's Ahab - without the grandeur - hell-bent on sinking his own ship for his own incrutable reasons.

Charles Ferguson has documented much of this folly in his powerful 2007 dbocumentary No End in Sight. Unlike the ironic Erasmus, however, there is no praise; only justifiable blame for the clueless W, chicken-hawk Cheney, and arguably insane Rumsfeld.

The Seven Million

Last summer it was Daedalus, the journal of the American Academy of Arts & Sciences, analyzing the phenomenon of mass incarceration.

Now it's The Wilson Quarterly, a thoughtful, respected publication from the Woodrow Wilson International Center for Scholars, covering similar ground.
Why, WQ asks, are seven million American either in jail or prison or on probation and parole? And what should be done about it?

These are the broad questions this blog has been trying to answer, in one way or another, since I launched it in December 2008.

Crime, Delinquency and the Ethics of Investigation

The philosopher Hegel distinguished very carefully between morality and ethics. Moralty (Moralitaet) was more abstract and transnational in nature. Ethics (Sittlichkeit) was about the mores of a particular cultural group.

Stieg Larsson employs both of these terms in describing the actions of his character Lisbeth Salander in The Girl With the Dragon Tatoo. Joining forces at last - after over 350 pages - with the other lead character, Mikael Blomkvist, Salander has absolutely no compunction whatsoever about hacking into Blomkvist's computer.

Especially with a high-stakes inquiry into the actions of an apparent serial killer on the line.

Larsson puts it this way: "Salander was an information junkie with a delinquent child's take on morals and ethics."

Salander wanted the info, so she took it. Her action was akin to delinquency in its lack of respect for the other person. If she'd simply asked Blomkvist, he probably would have given her the information without all that much hesitation.

Instead, she risked sabotaging a key relationship by undermining essential trust.