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.