Monday, December 31, 2012

Good Night Justice, Good Luck Reform

As Isaac Newton observed long ago, a body in motion tends to stay in motion. A corollary might be that what’s true of physical bodies is also on the Internet. And so it’s taken me longer than I originally intended to wind down this blog.

At the end of February this year, I expressed my intention do so. After 3 1/2 years, I felt the sense of a blog’s ending. Now, at year’s end, I’m making one last post before putting Piercing the Panopticon on the shelf.

The goals I set for myself have largely been achieved. In September 2010, I summarized them in a post titled simply “Why I blog.”

The foremost goal was to seek ways to resolve social conflict that point beyond the prison paradigm. Consequently, one of the recurring themes of the blog has been alternatives to incarceration. I will be seeking other platforms to pursue this further.

My other goals for the blog were much more directly achievable.

One goal was to showcase my subject matter knowledge of criminal justice by writing about topics such as mens rea, mandatory minimum sentences, and juvenile vs. adult crime. I gained this knowledge first as a law student, then later as a legislative counsel and program specialist in state government. And I intend to use it by teaching in a criminal justice program at a college or university.

I also sought to give voice to the value of prison ministry in keeping hope alive for people in prison. My active role as a board member in Prison Congregations of America continues and is also directed toward this goal. I’m seeking to engage more fully with the person of Jesus Christ — and empower others to do so as well.

Finally, I tried to have fun by enjoying writing for its own sake about topics I’m passionate about. That is why, for example, I tried to close with a flourish with a month of Harry Potter-influenced posts on criminal justice subjects. To be sure, this made for some highly idiosyncratic writing. Harry Potter and Alexis de Tocqueville are admittedly an unlikely duo.

Yet people seemed to find this blog through Web searches nonetheless. From December 15, 2008 through tonight, I wrote 346 posts and was the recipient of two guest posts from friends. For those 348 posts, there have been over 10,425 page views.

When I have identified another blog platform, I shall post a link on this one. For now, I would simply refer interested readers to my Twitter account, @areteave.

Saturday, December 29, 2012

The “Safety of the Keeps,” from Azkaban to Sing Sing

Alexis de Tocqueville’s Democracy in America is one of the most celebrated books ever written about our country. Published in two volumes, in 1835 and 1840, it is still widely read, particularly by political scientists.

The book has endured because it was a uniquely probing examination of the democratic prospect. As a liberal French aristocrat, Tocqueville sought to extract insights from the New World to understand how the ascendant values of liberty and equality would be likely to fare in the Old.

In search of such insights, Tocqueville arranged an extended visit to America. The occasion was a commission from the French government to study America’s penal system. Tocqueville and a colleague made the visit in 1831 and duly published a report the following year.


In Newjack, his account of working as a guard at New York State’s Sing Sing prison in the 1990s, journalist Ted Conover includes this quotation from Tocqueville’s prison report:

“The safety of the keeps is constantly menaced. In the presence of such dangers, avoided with such skill but with difficulty, it seems to us impossible not to fear some sort of catastrophe in the future.”

And indeed, serving as a correctional officer is still generally hard, dangerous work. That is precisely one of the reasons why Conover wanted to write about it, to give society’s underappreciated proxies a voice.

In the imaginary world of the Harry Potter books, the issue of safety for prison guards is temporarily solved through a Faustian bargain with horrible creatures known as dementors. Author J.K. Rowling depicts them as embodiments of utter despair, intent on extinguishing all hope and joy in the souls of muggles and magical folk alike.


As the tale unfolds, Harry and his friends find ways to confront the dementors by summoning happy memories and focusing the life-force contained in them. When you think about it, this isn’t merely a plot device. It’s a strategy that makes a lot of psychological sense in the real world, too.

Aside from prison guards, here is the broad thematic connection I see between Tocqueville and J.K. Rowling. Each explores themes of democracy and aristocracy against a backdrop of tumult.

For Tocqueville, the tumult was the bloody excesses of the French Revolution. These excesses informed his careful analysis of how democracy tends to operate. Rowling, by contrast, critiques the dreadful excesses of Voldemort’s fascist power grab for “purebloods.”

Sunday, December 16, 2012

Beware the Snitch!

The world “snitch” is an old synonym for “tattletale.” Webster’s New Collegiate Dictionary dates its usage to 1785.

In a legal context, however, it’s a relatively recent word. It isn’t even in the Fifth Edition of the widely used Black’s Law Dictionary, published in 1979. In that edition, only a generation old, the alphabetical listings jump from “smut” to “so” without an intervening snitch.

In the 1980s, however, the word came into much wider usage. This was principally because as America’s ill-fated “War on Drugs” escalated unimaginably, the use of informers to find (or fabricate) evidence against drug offenders became widespread. Someone who played the role of informer, usually in return for a reduction in his or her own sentence, was and is known as a snitch.

PBS explored the problem in considerable depth in a 1999 documentary called simply Snitch. The program also explored the unfairness of many mandatory minimum penalties in drug cases.

Producer Ofra Bikel’s interest in the issue was galvanized after hearing the story of an 18-year-old young man who was set up by someone he thought was a good friend. When the 18-year-old got some LSD for this “friend,” it turned out that the person was in cahoots with federal drug enforcement agents — and desperate to get a break on his own drug sentence.

To Bikel, it seemed crazy that this 18-year old with no previous convictions should suddenly be sent away for a minimum of 10 years on evidence supplied by a snitch. After all, a snitch has a tangible incentive to lie in order to catch a break from prosecutors in his or her own case.

I saw Snitch in 1999, when I was living in Des Moines and working for a special task force created by the Iowa Legislature to review criminal sentencing policy. But I hadn’t thought about it for years — until I saw the current USA Today article on snitches in the federal justice system.

The USA Today piece examines how informers in federal cases essentially buy reductions in their sentences by providing information to prosecutors about other defendants. According to USA Today, one in eight federal prisoners is engaged in this type of pay-to-snitch venture.

To be sure, in this context “pay” doesn’t mean money changing hands. But a reduction in a prison sentence for someone looking for leniency in his or her own case is definitely a powerful incentive to cooperate with authorities. And it can easily cross the line into telling them what they want to hear, regardless of the truth.

How in the world Harry Potter author J.K. Rowling came to use the word “snitch” to refer to a peculiarly elusive ball in the game of Quidditch, I do not know. Interestingly, though, in Quidditch, the snitch is pursued by two players, one on each side, who are called Seekers.


These Seekers are not searching for truth; they simply want the snitch. Analogizing to an adversarial criminal justice system, the problem is that each side has such an incentive to cherry-pick the truth. Instead of seeking the truth of the matter, prosecutors too often try to use snitches to notch another “win” in the competitive games they play.

At stake in those games is much more than victory in a Quidditch match. People’s liberty is on the line, with the prospect of spending years behind bars because a snitch made up or embellished a story about them, just to stave the snitch’s own skin.

Saturday, December 15, 2012

Probable Cause in the Wizarding World

“Odi et amo.” These short yet powerful words, from the Latin poet Catullus, can be expressed almost as succinctly in English: I love and I hate.

Catullus wrote two millennia ago. Yet such strong emotion is inevitably appealing, then and now. Small wonder that the self-promoting entertainer Cher once borrowed them to promote a concert tour.

Certainly such primal feelings are one of the key drivers of the hugely popular Harry Potter books and movies. Harry loves his friends, particularly Ron and Hermione and, later in the series, Ginny.

But he also hates his enemies: Voldemort, who killed his parents, and, on scene at Hogwarts, Severus Snape and Draco Malfoy.


Last night, I watched The Half-Blood Prince on DVD for the second time. Midway through the film, Harry, Ron, and Hermione, along with other students, are returning to Hogwarts from a visit to the nearby village. Suddenly, a student walking up ahead, Katy Bell, is swept up into the air, clearly possessed in some way.

Katy had been cursed with a spell (a form of assault) and made to carry a necklace intended to kill Prof. Dumbledore, the beloved Hogwarts headmaster. Beloved, at least, by all who truly live in the light.

The dark arts are fully unleashed, however, with Voldemort’s return. Harry Potter’s classmate Draco Malfoy is drawn, or chooses, to do the “dark lord’s” bidding.

After five years of tangles with Malfoy (and Malfoy’s father), Harry has deep-seated personal reasons to suspect Draco of committing the crime of cursing Katy. But standing before the highly rational and fair-minded Professor McGonagall and the saturnine Snape, he struggles to articulate his reasons.

McGonagall asks who could have done it. Harry blurts out that it was Malfoy. Snape challenges him to state his evidence. But Harry can reply only, “I just know.”

Even in the wizarding world, probable cause requires more than that.

Tuesday, November 27, 2012

The Grinch: A Robber Reforms

He famously stole Christmas.
And for well over 50 years,
The Grinch has carved a niche
Among America’s fondest fears.

From the Dr. Seuss original to Chuck Jones’s animated movie in the 60s to Jim Carrey’s full-length feature film, the tale of the redemption of this peculiar looking malefactor has fascinated audiences of all ages.

Tonight, as my family, flipped channels, we focused for a moment on the Chuck Jones version on ABC television. The scene we saw showed the Grinch at his seemingly irredeemable worst: taking the very last Christmas present from a tiny Who child — and blatantly lying to her about it.


Ah, but what a turn of events is his eventual transformation. The fearsome, nearly solitary creature who swooped in seeking to steal others’ tangible expressions of joy is redeemed by intangible expressions of joy.

Interestingly, for purposes of this blog, his change did not come from incarceration. It came from finding a social community whose love of life saved him from himself.

Wednesday, November 21, 2012

A Few Factoids From the Life of Jeremy Bentham

Jeremy Bentham’s remarkable life and work included much more than a sketchy design for a “panopticon” prison.

A cursory glance at Bernard Crick’s lengthy entry on Bentham in Makers of Nineteenth Century Culture* immediately yields some eye-opening facts.

To wit: Young Jeremy was 13 when he began attending Queen’s College, Oxford. And he was only 16 when he graduated. Such ages were normal for schooling at the time. Yet they seem downright strange to contemporary American sensibilities.

If he lived in our day, one suspects Bentham would be all over the scientific research on brain development among juveniles. If he were American, he would be insisting that the Supreme Court apply this research to the interpretation of cases on “juvenile lifers” and other related issues.

Consider also the glimpse Crick’s essay provides of the provenance of Bentham’s panopticon plan. The model for the panopticon, Crick says, began as a plan for cooperative settlements created not for prisoners, but for the unemployed.

Bentham worked on the panopticon idea off and on for twenty years. He was, Crick comments, a relentless perfectionist about this work, always struggling for definitive precision before considering it in finished form. It took a concerted effort by a host of followers to eventually apply and popularize it.

About Bentham’s famous donation of his skeleton to the University of London for scientific study, Crick has not a word to say. But if he had included a mention of this, I’m sure he would have included a telling detail or two.

*Makers of Nineteenth Century Culture, 1800-1914, ed. Justin Wintle (London, Boston, Melbourne and Henley: Routledge and Kegan Paul, 1982).

Sunday, November 18, 2012

When Does a Life Become No Longer Worth Saving?

A 16-year-old boy drinks alcohol, gets behind the wheel of a pickup truck and crashes. The boy survives, but a friend of his who was a passenger is killed.

How should the law respond?

An Oklahoma judge decided that the boy, now 17, deserved a break. Though the boy pleaded guilty to first-degree manslaughter, the judge sentenced him to an unusual probation arrangement. Some of the conditions are pretty standard, such as wearing a monitoring bracelet and participating in counseling.

But Judge Mike Norman, 69, also sentenced the teen to attend a church of his choosing every week. From the ABC News account, the duration of this requirement was unclear. Presumably, however, it is for 10 years, as that is the length of the deferred sentence.

Naturally a sentence like this raises constitutional eyebrows about violation of the separation of church and state. Prof. Doug Berman, for example, casually implied as much when noting the case in his sentencing law blog.

A legal challenge is not likely to be coming from the defendant, though. “I usually represent outlaws and criminals,” his attorney told a local paper. “This is a kid that made a mistake. I think he’s worth saving.”

These words are very telling — not so much for what they say about this case, but for what they imply about most of the others. For most of the others are not saved. The common pattern is for them to become enmeshed in the justice system, with the chances of getting out diminishing with each repeat offense.

Yet if a 17-year-old with an otherwise clean record is worth saving, then what about an 18-year-old? What about a 17-year-old with a few blemishes on his or her record? And so on.

Questions like this remind me of the dialog between Abraham and God presented in Genesis 18. God is poised to destroy the cities of Sodom and Gomorrah for wanton sinfulness. Abraham intercedes, arguing that is would be wrong to do so if a certain number of righteous people can be found there.

Abraham eventually gets God to agree to forego forsaking the two cities if ten righteous people can be found there. Eventually Sodom and Gomorrah met fateful ends anyway. But Judge Norman would surely approve of Abraham’s attempt to intercede.

Sunday, November 4, 2012

The Empty Chairs

Why was criminal justice not an issue in the presidential debates? After all, there are over two million people in jail or prison in America. Add in probation and parole, and the total number under some form of correctional supervision is, in round numbers, a whopping seven million.

And in a John Donne, no-man-an-island sense, it doesn’t stop there. The families of inmates and probationers are also greatly affected by sentencing and corrections policy.

Indeed, so are we all, because we, as a society, set the sentences. Correctional officers and other justice system professionals are merely our proxies on the front lines.

Yet, as a recent column in the Huffington Post put it, on the issue of mass incarceration, there were two empty chairs at the presidential debates.

There are also empty chairs around many family tables because so many people are in prison.




Wednesday, October 31, 2012

Sex Offender Restrictions on Halloween

Restrictions on what registered sex offenders whose crimes were against children can or must do on Halloween are common in a number of states. The constitutionality of such restrictions has been intensely litigated and is far from a settled question.

On October 29, a federal judge in California ruled on the issue. The holding was that sex offenders are not required to post signs outside their houses that say “no candy.” But the judge ruled that a local ordinance with several similar restrictions could be upheld.

The other restrictions prohibit outdoor lighting or decorating of a sex offender’s house on Halloween, as well as answering the door to give out candy to trick-or-treaters.

CNN’s online account elicited numerous comments. The question of protecting children versus unfairly branding sex offenders living in the community prompts strong feelings on all sides

Monday, October 29, 2012

Living in Truth, on and off the Field

Thomas Mann, Vaclav Havel and other artists have agonized over the connection between art and life. Havel, the Czech dissident-turned-president, argued for the goal of living in truth.

To live in truth, one’s inner and outer worlds must be integrated. When that happens, Havel suggested, a life could become a work of art.

How, if at all, does this reasoning apply to athletes? For big-time athletes, like high-profiles, are often in the public eye, moving in worlds that can seem so different from ordinary reality.

In Moneyball, the versatile journalist Michael Lewis tells the story of Billy Beane, a peculiar case study of bringing art and life together in the sports word. Annointed by baseball scouts as a future superstar while still a teenager, Beane never fulfilled that promise on the field.


As a general manager, however, Billy Beane has been instrumental in reinventing the tradition-bound game of baseball. As Lewis shows in Moneyball, Beane has led the Oakland A’s to surprising success by his willingness to use statistical analysis to guide player acquisitions.

Lewis recounts how, in the early 1980s, Beane was overshadowed in the New York Mets minor league system by two other players, Darryl Strawberry and Lenny Dykstra. Strawberry and Beane were drafted the same year, both in the first round, and billed as future superstars. Dykstra and Beane were roommates and friends.


Dykstra, in particular, was a challenge for Beane, for Dykstra seemed to have a head for the game that maximized his minimal talent. For Beane, it was the opposite, as he continued to get minimal results from what seemed to be maximum talent.

Off the field, however, in the game of life, the tables have turned. Strawberry and Dykstra have each done prison time. Strawberry’s issue was drugs. Dykstra’s issues were many, including drugs, sex offenses, and financial crimes.

Earlier this year, when Dykstra was sentencing to three years in prison for grand theft auto, the Village Voice said it was the culmination of what was essentially a 20-year crime spree.

Meanwhile, Beane played played by Brad Pitt in a movie version of Moneyball and got his A's back in the playoffs again, despite the usual financial challenges.

Saturday, October 27, 2012

Chris Brown's Sentence: Wake Up Call Needed?

Community service has become an accepted part of alternative sentencing. It’s often part of a probationary sentence that keeps someone out of prison.

When one stops to think about this, however, it’s deeply odd. Serving the community by speaking to school groups or picking up trash on public land should be considered a privilege, not a burden. Indeed, it’s a privilege millions of people embrace voluntarily, usually through the nonprofit group of their choice.

Those people are rarely written about in the media. But the media — particularly the entertainment media — makes sure we know about wayward celebrities like Chris Brown.

Brown is the young singer who physically assaulted his then-girlfriend Rihanna in 2009. After pleading guilty to a felony assault charge, he began serving a 5-year probationary sentence. The sentence included a court-ordered requirement to perform at least 1,440 hours of community service.

For the past three years, he has been doing several different jobs in the Richmond, Virginia, area. These include cleanup work in police stations and janitorial duty at a daycare.

But the judge in Los Angeles County who is responsible for signing off on Brown’s sentence completion is not so sure his records are accurate. The number of hours Brown has racked up in the last seven months is supposedly 701, according to the Richmond Police. Yet as media reports pointed out, it previously took him 28 months to reach that number.

Plus, during the seven months when Brown has purportedly been putting in all that time picking up trash, he’s also been taking ample time to sing before large audiences and (the tablids speculate) maybe even start romancing Rihanna again.

There seems to be something wrong with this picture. The judge in Los Angeles has therefore ordered a further review of Brown’s records to determine whether he has violated his probation.


Chris Brown’s most well-known song is perhaps Don’t Wake Me Up. It is quite possible, based on the record review, that someone — probably his attorney — will need to wake him from the delusion that his sentence for beating up Rihanna is over so soon.

Friday, October 19, 2012

Meeting Maximum Bob (a bit belatedly)

Elmore Leonard is widely acknowledged as a master of crime fiction. Indeed, he’s a versatile writer who’s also accomplished in other genres, including Westerns.

I’ve enjoyed his work both on the page and in film adaptations. Over twenty years ago, I was tremendously impressed by the smooth writing and daring plot twists in the 3-novel collection Gold Coast.

On film, Get Shorty, with John Travolta and Danny DeVito, was a hoot. Out of Sight, with an emerging-from-ER George Clooney and a young Jennifer Lopez, was splendidly executed as well.

There is also a film version of Leonard’s 52 Pickup, which I haven’t seen. All year, however, I’ve been intending to pick up the book. It seemed fitting to do so, because that’s my age.

So today, I tried two places to pick up 52 Pickup. First I tried Midway Book, a venerable and well-stocked used bookstore in St. Paul’s Midway area. No luck.

Next I tried the Galaxie Library in Apple Valley, a St. Paul suburb. No luck there either.

There was, however, a definite silver lining for the independent scholar who blogs about sentencing policy. One of the Elmore Leonard titles that were on the shelf was Maximum Bob — a book whose very title points to teachable moments about judicial discretion.


Turns out there was a short-lived TV series in 1998 based on the book. I missed that entirely at the time. But ’98 was the year that I began my stint with the Iowa Legislature on its special sentencing commission. Considering that judicial discretion was a key topic on the commission, I’m surprised Maximum Bob didn’t come up during our work.

Sunday, September 30, 2012

Christopher Nolan's Kangaroo Court

The latest Batman movie carries the burden of being the occasion for the murderous assault in Aurora, Colorado, in July. A deranged graduate student named James Holmes killed 12 people and injured 59 in a shooting spree in a suburban theater during an opening-weekend screening of the film.

As the legal process for Holmes takes its course, the film itself is winding down its theatrical run. With video and other distribution channels in the pipeline, films don’t stay very long in theaters these days. Perhaps not surprisingly, then, the theater in Burnsville, Minnesota, where I saw The Dark Knight Rises was one of the smallest I’d ever been in.

It was so small that the disparity between the large screen and the tiny room was quite incongruous.

Rather incongruous, too, is director Christopher Nolan’s plotting of the film. Strangely enough, in a movie featuring such over-the-top violence, Nolan at times seems on the verge of raising the question of whether violence is ever justified — even when responding to violence.


Unfortunately, that theme never really crystallizes. But the film contains some memorable individual scenes. Naturally, for purposes of this blog, I was struck by the sessions of the kangaroo court that is capable of issuing only death sentences.

Ostensibly, prisoners are given a choice: exile or death. Exile, however, turns out to be over the not-quite-frozen river, and therefore a de facto death sentence.

What was the context, I wonder, in which the term “kangaroo court” was coined? It dates, according to Webster’s, to 1853.

The larger question, however, is whether the entire film is a type of kangaroo court. One definition of such a court, after all, is of "a judgment or punishment given outside of legal procedure." In effect, the entire film comprises that kind of court.

Saturday, September 29, 2012

10,000 Lakes, 10,000 Rounds of Ammunition

Fatal shootings in or near workplaces by disaffected former employees seem to have become part of the accepted backdrop of American life.

Only a month ago, in New York City, a disturbed former clothing designer lay in wait outside the Empire State Building for the co-worker whom he blamed for the loss of his job. The 58-year-old former employee shot and killed his intended victim — then was killed by police himself after taking out his gun again when they confronted him.

Nine bystanders were injured, presumably by the barrage of bullets (16 rounds) fired by police. This all went down immediately outside of one of America’s signature tourist attractions.

Two days ago, another horrific workplace shooting unfolded in a different American city. This time the scene was a sign manufacturing business in Minneapolis. A 36-year-old engraver who was being let go fatally shot five people and injured three others. He then descended to the building’s basement and killed himself.

Today’s account in the Star Tribune contained numerous storylines that could be explored in greater depth.

One is the ubiquity of guns in the U.S. today. The Minneapolis gunman used a 9 mm Gluck revolver. Police also found a second gun in his house, as well as packaging for 10,000 rounds of ammunition.

Another theme in these shootings is the pressure our hard-driving work culture exerts on all concerned. When the drive for success is so palpable in the workplace, it stands to reason that the chances of someone snapping increase.

Most people don’t snap. But why is it that some do? In some cases, mental illness is surely a precipitating factor.

The parents of the shooter in the Minneapolis case had apparently tried to get their son into counseling. He had resisted their efforts, however, and distanced himself from them.

In their statement to the media, the parents noted that their son’s battle with mental illness was “not an excuse for his actions, but sadly, may be a partial explanation.”

Indeed it may.

Friday, September 28, 2012

Certainty vs. Severity

American legislatures have constantly added to sentence lengths for a host of crimes in the last 25 years. In many states, this has been combined with a decrease in the power of the parole board due to determinate sentencing. The resulting increase in length of stay has been a key driver of the prison population boom.

In theoretical terms, the excessive focus on the severity of punishment has led farther and farther away from the realization that the Enlightenment thinker Cesare Beccaria reached way back in 1764. Namely, that if the goal is deterring crime, the certainty of punishment is far more important than the severity.

A particular case in point is drunk driving laws. Numerous states have adopted felony sentences for three or more convictions for drunken driving. In terms of actually preventing drunk driving, however, it would probably be more effective to put more cops on the road on a regular basis.

Why would this help? As things stand now, most offenders drive drunk multiple times before they are finally pulled over and charged. But if there were a significantly higher chance of being caught, potential drunk driving offenders would be more inclined to avoid committing the offense altogether.

This, at least, is what Beccaria’s certainty principle would suggest. To be sure, it would cost considerable sums of money to put more DWI checkpoints in place and engage in other crime prevention efforts. But considering how expensive it is to incarcerate someone, Beccaria’s insight could reallocate resources toward a more efficient overall strategy for dealing with drunk driving.

It would also be more just. With more consistent enforcement of the law, arrests would seem more consistent, and therefore more fair.

Wednesday, September 26, 2012

Not Necessarily White: Kingsley Shacklebolt on Film

Twenty-four hundred years ago, Plato’s dialog The Cratylus explored the connection between names and the things they stand for.

In our time, even before she began writing her remarkable series of Harry Potter books, J.K. Rowling started compiling a list of intriguing names.

In the books themselves, Rowling's names often give clues, veiled in classical or French allusions, to the nature of the people who bear them.

Tonight, watching The Order of the Phoenix on DVD with my boys, I was struck by my own implicit racial prejudice concerning one such name: Kingsley Shacklebolt.


It’s a dynamo of a name. The word "king" is right there in Kingsley, pointing to a commanding presence. And Shacklebolt connotes both power (bolt, as in lightning bolt) and service (shackles). So Kingsley Shacklebolt is completely spot-on as the name for the lead “auror” at the Ministry of Magic in the Potter books.

The aurors enforce the laws that govern witches and wizards. In essence, then, Shacklebolt begins the books as the attorney general for the magical community.

In reading the books or hearing them read, I assumed he was white. This occurred despite the fact that, in the early pages of The Order of the Phoenix, J.K. Rowling describes Kinglsey Shacklebolt as black.

Somehow, amid the narrative sweep of the 870-book, this fact did not really register with me. The white image took shape, without me really thinking about it. After all, the books were written by a white British woman and are set in Britain. And I, of course, am white myself.

In the film version, there is no room for such misconceptions. Shacklebolt is clearly portrayed as a person of color. He is played by George Harris, a native of the West Indies, and exerts an undeniably authoritative presence.

My hat is off to the filmmakers for correcting my flawed misconception that Shacklebolt is white. He could be black, white or any other race, in a community where what ultimately matters is, as Martin Luther King, Jr. said, the content of one’s character.

Why did I think he was white? Because being white insulates many of us from the struggles that others must overcome to achieve a level playing field in the face of structural racism.

In short, as I learned in dismantling racism training in 1998, being white means NOT having to think about this — even when we should.

Friday, August 31, 2012

Brubaker and Tough Love

Robert Redford's portrayal of a crusading prison warden in the 1980 film “Brubaker” is far from his best known role. That is scarcely surprising. Even with a bona fide box office star on board, an often gritty (if increasingly melodramatic) prison movie is a tough sell to the public.

Still, the film remains noteworthy. It was based on the experiences of a real warden, Tom Murton, in the Arkansas prison system in the late 1960’s. Murton’s efforts led to federal litigation that helped validate the constitutional rights of inmates concerning the conditions of incarceration.


As depicted in the film those conditions were horrific, with beatings and bribery only the tip of the festering iceberg.

Is it possible that love could melt that iceberg and offer a new paradigm for criminal justice? Two authors from the American friends' community, Laura Magnani and Harmon L. Wray, explore that question in their 2006 book “Beyond Prisons.”

It's a book worth reading, even for those more comfortable with the word "tough" than the word "love."



.

Status Offenses

In the age of Facebook, the word “status” has had a remarkable new lease on life. Two millennia removed from its Latin roots, the word pours forth over the Internet, a vessel into which millions pour their expressions of self.

There are, however, other specific uses for the word. In criminal justice vocabulary, “status offense” is a term of art for conduct that, though not criminal, carries consequences because the offender is a juvenile.

Examples of status offenses include:

• Underage drinking

• Skipping school (truancy),

• Running away from home

• Curfew violations

Behaviors such as these can bring juveniles under the supervision of the courts. If the problem is persistent enough, a judge may find that the juvenile is delinquent. This, in turn, can trigger placement in a custodial setting that has most, if not all, of the elements of incarceration.

A glance at the entry for “status crime” in the Fifth Edition of Black’s Law Dictionary (1979) points to a time when open-ended offenses were used against adults as well. A “status crime,” according to this edition of Black’s, is “[a] class of crime which consists not in proscribed action or inaction, but in the accused’s having a certain personal condition or being a person of a specified character.”


The example given in Black’s is vagrancy. I’m reminded also, though, of Otis the Drunk in reruns of the “Andy Griffith Show” that I saw in my youth.

Sheriff Andy Taylor and Deputy Barnie Fife did not have a systemic procedure in place for testing Otis’s blood-alcohol level. But that did not stop them from using their discretion to put him behind bars when they deemed it appropriate.





Thursday, August 30, 2012

The Bitter Irony of Mass Incarceration

"A riddle wrapped in a mystery inside an enigma."

Winston Churchill coined this  phrase in 1939 to describe Russia. It became widely known during the Cold War.

Could it be applied to America's prison boom?  For there is a mysterious element to how the U.S., in only one generation, become an international outlier on incarceration rates.

To be sure, there are many reasons for the unprecedented increase in inmates.Two years ago, a special issue of Daedalus on mass incarceration probed them in considerable depth.

The irrationality of America's entire epic jailing exercise, however, cannot be denied. To paraphrase Churchill, American mass incarceration is a riddle wrapped in a bitter irony. The nation that says it loves liberty so much takes so much of it away from its own citizens.

Tuesday, August 28, 2012

Length of Stay: No, Not in a Hospital

The sheer size of America's incarcerated population isn't due only to sending more people to jail or prison. It is also due to keeping them there longer.

To be sure, there have been plenty of people sent. In the last twenty years, the number has shot past 2 million. It currently still stands at 2.3 - despite intense financial pressure on state budgets to reduce the bloated corrections tab.

The size of the prison population would come down significantly, though, if offenders did not stay so long. Length of stay is an important driver of the overall incarceration increase. Yet as legislators have continued to lengthen sentences and tack on enhancements, the cumulative effect has been inescapable.

As a result, length of stay is a well-established term in criminal justice discourse.

To search engines, however, the term still seems to connote length of stay in hospitals, not prisons. A simple Google  search tonight for "length of stay" yielded a search results page consisting entirely of medical sources, such as this one from the Centers for Disease Control.

Tuesday, July 24, 2012

The Hum of the Hovercraft

In yesterday's post, I mentioned the 24 / 7 video cameras in "The Hunger Games."

Tonight, I read this in the Sunday's Star Tribune:

"All of the pieces appear to be lining up for the eventual introduction of routine aerial surveillance in American life - a development that would probably change the character of public life in the United States."

The quotation is from the American Civil Liberties Union, in a paper on unmanned drones published last year. The tile was "Protecting Privacy From Aerial Surveillance."

In "The Hunger Games," it is unclear whether the hovercraft are manned. But they are always ominous.


Monday, July 23, 2012

Deterrence: The View From District 12

Social control takes many forms.

In the U.S., mass incarceration plays that role for many segments of the population - particularly African-Americans.

Most of that incarceration, however, takes place off-screen. Many of us don't even think about the fact that our country has over 2 million people locked up in jail or prison. We just let the correctional officers and other criminal justice professionals serve as our proxies.



The nightmarish world depicted in "The Hunger Games" provides a thought-provoking contrast to our indifference. In Suzanne Collins's dystopia, a lethal form of incarceration plays out 24 / 7 on out-size video screens.

The ritual is almost like a return to the era of the public execution in its over-the-top striving for a deterrent effect. No use resisting The System when the power to compel such extreme behavior is on in-your-face display.

The prisoners are children who committed no crime, yet are put under intense pressure to be their own executioners.

Sunday, July 15, 2012

Beltless at the Dakota County Courthouse

“Trust, but verify,” Ronald Reagan supposedly told Mikhail Gorbachev upon signing a missile treaty in the waning days of the Cold War.

It’s a curious phrase. The more a party feels it necessary to verify, the more it would seem to undermine trust. After all, if there really is trust, there is no need to verify.

That’s why people in close-knit communities leave their doors open and their cars unlocked. They don’t feel compelled to review surveillance tape upon returning home to verify that their trust was well founded.

What happens, however, when the size of a community grows sufficiently large that the instinctive trust of a smaller community is no longer present?

Well, then you would have — to take one example — the Dakota County courthouse in Hastings. As the Star Tribune reported last December, the country board insists that attorneys remove their belts and go throw security every time they visit the courthouse.

Members of the bar pressed the board for an exemption from the belts-off rule late last year. In other metro counties, they pointed out, attorneys are regularly allowed to bypass airport-type security procedures.

In addition, as attorney Paul Rogosheske contended, attorneys are already screened for character and moral fitness by the bar admission process.

The Dakota County Board was completely unmoved by these arguments. Instead, the board reaffirmed its support for continuing to require attorneys to go through the same security screening as everyone else.

During the board hearing, a commander from the sheriff’s office, John Grant, displayed a shiv (a piece of sharpened plastic). “This will kill you, just like anything else,” he said ominously.

Similarly, one of the county commissioners, Liz Workman, flatly told the lawyers that the courthouse was like the airport. So they should get used to removing their belts and going through the whole-nine-yards security procedure.

There is an obvious problem, however, with the airport analogy. Airlines offer expedited check-in programs for their frequent flyers. It’s a pity that Dakota County can’t do the same for its frequent courthouse-flyers, namely attorneys.

It’s a pity not because it’s such an inconvenience to remove your belt. It’s a pity because using more verification than is really needed tends to undercut trust.


Monday, July 9, 2012

Pistol Packing in L' Etoile du Nord

Headline writing is a peculiar craft that will outlive newspapers. To capture a would-be reader's interest, in a few short words, is an important skill. Especially in an age of information overload.

Sometimes, however, the headline writers get a little too cute. Even worse, sometimes they obscure the facts.

For example, yesterday's Star Tribune featured a long front-page article on legalized gun carrying in Minnesota. Presumably trying to riff on the state's "Land of 10,000 Lakes" slogan, the article multiplied the state's number of lakes by ten to get the number of permit holders.

The result was a headline that read Land of 100,000 Gun Toters.

Ah, but reality is not always so nicely symmetrical. It is Wisconsin, our neighbor to the east, that has about 100,000 gun permit holders. Here in Minnesota, with more restrictive gun permit requirements than Wisconsin, the number is more like 51,000. (The Strib said it was 50,777 as of 2007, which is now five years ago.)

A pity, to have such a fine article undermined by a factually inaccurate title. Unless the Strib was trying to imply that the trend line is heading toward 100,000 gun carriers in Minnesota?

Saturday, June 30, 2012

Sandusky's Mens Rea

With certain conduct, the same action may be criminal or not, depending on the intent of the person who performed it. This is basic criminal law, and in the first year of law school, students historically have learned a Latin term for criminal intent: mens rea.

The Jerry Sandusky juvenile sex abuse case is a recent reminder of this basic principle. Some of the charges were for clearly prohibited acts, such as oral or anal sex with a minor. Other charges, however, were for conduct involving overt but somewhat ambiguous acts, such as touching in the shower.

Before the jury began its deliberations, the judge gave clear instructions about what constituted a criminal mental state.

“It is not necessarily a crime for a man to take a shower with a boy, wash a boy’s hair, lather his shoulders, or engage in back rubbing or back cracking,” the judge said. “What makes this kind of ambiguous contact a crime is the intent with which it is done. You must determine it is an act of lust.”

And that, indeed, is what the jury found. On virtually all of the charges involving “ambiguous conduct,” the jury found Sandusky guilty of actions motivated by lust.

Amazed by the Numbers

Round numbers are supposed to be easier to get your mind around. But it’s hard to do that, when the round number is one American in every 100 behind bars.

The American prison system currently holds about 1.6 million people. Jails confine another 735,000 more, according to latest data from the Bureau of Justice Statistics.

The jail figure is down slightly in the last few years. But when the number of prison inmates is added in, the total number of people confined in correctional facilities approaches 2.4 million.

It’s not so much a system as a set of systems, consisting of 50 states, the District of Columbia, the feds, and various local governments — particularly jails at the county level.

With so many decision makers, it’s hardly a vast conspiracy. The cumulative effect, however, is Leviathan-like in size. Scholars now call it mass incarceration.

This Leviathan is a labyrinth for many who are inside it. With prison terms so long and rehabilitation resources so scarce, it must seem like being stuck in a maze, trying to get out.


Indeed, mass incarceration has also become a labyrinth in policy terms. But no Theseus is in sight, to slay, or at least tame, the beast our society has created out of fear and malign neglect.

The closest we’ve come is Sen. Jim Webb, whose sensible proposal in 2009 for a national commission to review sentencing policy and practice went nowhere fast.

Instead of a single national hero, how about a host of heroes at the state and local level? In the dark maze, they could be a thousand points of light.



Tuesday, June 26, 2012

Prison or Probation? Wastewater Dumping Case Poses Familiar Question

What should the sentence be, when someone is convicted of illegally dumping mass quantities of wastewater on public and private property?

By mass quantities, I mean millions of gallons. The dumping was done by a 50-year-old Pennsylvania man, Robert Allan Shipman. He was the former owner of a business that disposed of products that included sewage sludge and restaurant grease, as well as wastewater containing byproducts from natural gas drilling.

Sadly, Shipman took the seemingly easy way out. He told his drivers to dump the water into steams and abandoned mines, and on various business properties in several western Pennsylvania counties.

Eventually, the harebrained scheme was discovered, Earlier this year, Shipman pleaded guilty to numerous criminal counts. Among them were theft, tampering with public records, and conspiracy.

Understandably, prosecutors sought a prison sentence. They argued that incarceration was needed to send a message that would deter other would-be polluters from harming the environment on such a disturbing scale.

Instead, the judge imposed a sentence of seven years of probation and 1,750 hours of community service. Shipman was also fined $100,000 and ordered to pay $257,000 in restitution.

Prosecutors are appealing the sentence, the Pittsburgh Post-Gazette reported.



Tuesday, June 19, 2012

Trespass at the Open

The seemingly ageless Bob Costas was conducting an interview near the 18th green of the Olympic Club in San Francisco with U.S. Open winner Webb Simpson.

Suddenly an oddly dressed interloper inserted himself into the picture. Within seconds, the camera cut away — but not before the interruption broke the flow of the interview.

Simpson dealt with the distraction by acknowledging it. “Enjoy your jail cell, buddy,” he said, glancing off camera. His tone seemed to express genuine concern, not derision.

Costas reflected back Simpson’s statement, as good interviewers often do. The “gendarme” was now in charge of the situation, Costas observed.

This was a somewhat odd word choice, it seems to me. After all, “police officer" would have been much more straightforward. But it did give Costas a chance to show off his vocabulary.

In any case, I record the exchange because of how it reflects the reliance our society continues to have on incarceration, even for nonviolent offenses. Locking someone in a cell is America’s default position when dealing with deviant conduct that has been defined as criminal.

We are arguably not as open a society as we like to think ourselves to be. A more open society would probably not be so quick to bundle its enemies off to jail.

Thursday, May 31, 2012

Severus Snape, Criminologist

The speech comes in the sixth of the seven Harry Potter books, in a chapter that is also the book’s title: “The Half-blood Prince.”

Severus Snape, the sinister professor with ambiguous loyalties and a deep hatred for Harry Potter, has finally achieved one of his heart’s most cherished desires. He has been appointed to teach Defense Against the Dark Arts at Hogwarts School of Witchcraft and Wizardry.

In his first session with his sixth-year class, Snape frames the subject in a tone that to Harry seems suspiciously like a panegyric.

“The Dark Arts, said Snape, “are many, varied, ever-changing, and eternal.”

What sorts of strategies are most effective in confronting the dark side when it is so indestructible?

Snape is cautious in his counsel. Fighting dark forces, he says, “is like fighting a many-headed monster, which, each time a neck is severed, sprouts a head even fiercer and cleverer than before.”

Substitute the word “crime” for “Dark Arts,” and Snape begins to sound like a conservative criminologist. To take just one example, hasn’t America’s ill-fated “war on drugs” produced precisely the hydra-head phenomenon Snape tried to warn his students against?

Wednesday, May 30, 2012

Bring Your Toothbrush

Prison or probation?

Even in states with structured sentencing systems, the answer to this fundamental question isn’t always known when someone is convicted of a crime.

Often, however, there are indicators of how the decision will go.

Consider, for example, a sex offense case last fall in Minnesota involving a priest who had sex with a young woman he was counseling. She was dealing with an eating disorder and in a vulnerable state from childhood sexual abuse.

The priest, Rev. Christopher Wenthe, did not deny having sexual contact with the 21-year-old woman. But he claimed the sex was consensual.

The jury did not agree and convicted him of criminal sexual conduct in the third degree on November 15.

The Ramsey County prosecutors, David Hunt and Kevin Kugler, moved to have Wenthe immediately taken into custody. The district judge, the Hon. Margaret Marrinan, denied that motion.

Wenthe’s defense attorney, Paul Engh, indicated he would seek a sentence of probation at the sentencing hearing in December. Though Judge Marrinan did not tip her hand completely, she did give Engh and his client a reality check.

“The court will direct the defendant to bring his toothbrush,” the judge said, for the sentencing hearing on December 14.

At that hearing, as the Star Tribune reported, Judge Marrinan sentenced Rev. Wenthe to a year in the workhouse.

Thursday, May 24, 2012

Hecker Hits the Road - Again

Denny Hecker was a Twin Cities car dealer who lived too high, lied too much, and got over-extended. His various enterprises came crashing down around him during Great Recession. It was a perfect storm of self-imposed calamity, compounded by the bad economy.

The perfect storm included bankruptcy and criminal fraud charges, as well as a drunken driving arrest. To engage in a rather bad pun, the wheels fell off for the former auto magnate who once tried to buy the Minnesota Vikings.

And yet even as his businesses ran on fumes and finally expired, Hecker kept digging himself into a bigger hole. This self-sabotage included attempts by Hecker and his newest girlfriend / wife to mislead the bankruptcy court about the extent of Hecker’s assets.

Prison usually provides a reality check for people as self-indulgently willful as Denny Hecker. And that is indeed happening. This week the Star Tribune reported on the dose of “diesel therapy” Hecker is receiving, courtesy of the U.S. Bureau of Prisons.

The bureau is relocating Hecker to a different prison, this time in Pennsylvania. It’s the fourth time Hecker has been moved since he started serving his 10-year sentence in February.

Outside the walls, Hecker broke rules with impunity. The consequences come quicker, it seems, for rule violations inside, such as disregarding limits on phone calls.

Saturday, May 19, 2012

Celebrity's Peculiar Platform

“Celebrity is as celebrity does,” says Ken Branagh’s Gildreoy Lockhart in the film version of Harry Potter and the Chamber of Secrets.

Well, maybe so. The statement is so tautologically nonsensical its meaning, if any, remains obscure.

Yet it does point to our cultural preoccupation with fleeting fame, narcissistic navel-gazing, and tabloid-driven news.

A case in point: The Detroit News reported last week on the drunken driving sentencing hearing for former Miss USA Rima Fakih. The 26-year-old Michigan native was caught last December with a half-empty champagne bottle in her car as she wove in and out of traffic. Her blood-alcohol content was over twice the legal limit.

Fakih was worried she might have to serve jail time. But a judge in Detroit sentenced her to six months of probation and 20 hours of community service. She must also pay a $300 fine and $300 in court costs, as well as other fees.

Fakih’s community service will include speaking to students about the dangers of drunken driving. Perhaps her celebrity status as the first Arab-American to become Miss USA really will gain a wide audience for her cautionary message about drinking and driving.

Indeed, for Fakih, it seems like a win-win. She not only avoids jail; she also gets to keep her flickering flame of fame alive. At least until she makes her scheduled appearance on a celebrity-dating reality-TV show later this year.


Monday, April 30, 2012

California's Slide Into the Fiscal Ocean

Warren Zevon was a talented singer / songwriter who didn’t flinch from the macabre or even the apocalypse.

Two years ago, I posted about “Prison Grove,” a song on the last album he released before dying of cancer.

Tonight, I’m thinking of “Desperadoes Under The Eaves,” from thirty years before that.

And if California slides into the ocean
Like the mystics and statistics say it will . . .

Zevon’s song was nominally talking about the consequences of not paying a bar bill, as his thirst extended to “all the salty margaritas in Los Angeles.”

Figuratively, however, I’m struck by how Zevon’s mid-70s song was written at a time when the affluent but overextended California of the postwar years was on the verge of buckling.

By the decade of the aughts, the fiscal slide into the ocean of insolvency was nearly complete.

The factors were many and various. Proposition 13 in 1978, which limited property taxes. The end of the Cold War, and the subsequent downsizing of aerospace jobs, such as the one Michael Douglas’s character once had in the film "Falling Down."

And then there was the fiscal drain of a gargantuan state corrections system. A system that expanded so grotesquely that federal courts had to take over control of the system.

The feds did not seek out this responsibility; it came about because California’s prison healthcare was so deficient that it killed people through medication errors and drove others crazy amid the constant claustrophobia of triple bunking.

Zevon is gone. But the bizarre story of the once-golden state’s prisons continues to unfold, as this Los Angeles Times article describes.


A Sweet Sentence?

Outside of the realm of grammar, the word “sentence” has, to American ears, become virtually synonymous with sending someone to jail or prison. It could scarcely be otherwise, in a culture that puts as many people behind bars as ours.

Black’s Law Dictionary summarizes this meaning adequately enough. A sentence, according to Black’s, is “[the judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted.”

To be sure, the punishment doesn’t inevitably have to incarceration. It could, for example, be to a period of supervision or monitoring with conditions known as probation. We certainly impose plenty of that in our criminal justice culture as well.

But whether a criminal sentence involves prison, probation, fines or a mandated treatment program, its essence includes elements of punishment and pain.

How odd, then, are the lyrics of the first line of the venerable Christian hymn "I Know That My Redeemer Lives."

I know that my Redeemer lives!
What comfort this sweet sentence gives!

What a surprising sentence, to all those convicted of sin! Which is all of us.

Thursday, April 12, 2012

Jesus Wore a Hoodie, Indeed

A friend of mine, Michael Reinhart, is a Lutheran bishop in the deep South. The Texas-Louisiana Gulf Coast Synod, to be exact.

I know  Mike through my wife, Diane, who served on a music ministry team with him after college. Though we don’t see him often, Facebook is a remarkable platform for bridging time and tide.

Tonight, I saw a picture in my FB feed of Mike wearing a hoodie — as thousands of people across the country have done to protest the killing of Trayvon Martin. Trayvon, of course, was the unarmed African American teenager who was wearing a hooded sweatshirt when he was fatally shot by 28-year-old man named George Zimmerman in Sarasota, Florida, six weeks ago.

Zimmerman’s race has been the subject of quite a bit of dispute in the media. He has a white father and a Latina mother.

Today Zimmerman surrendered to the police, after being charged with second-degree murder for killing Trayvon. HIs claim of self-defense will test the legal parameters of Florida’s so-called “stand your ground” laws.



How ironic it is how many of America's unresolved racial issues have come to be symbolized by a "hoodie," which covers so much of the skin.

And how curious it is that the furor comes twenty years after the Rodney King riots of 1992. Los Angeles then, Florida now. The more things change, the more they seem to stay the same in a country still in need of racial reconcilation.

Tuesday, April 3, 2012

Strip Searches and Jail Admissions

About 13 million people are admitted to American jails each year.

Some of them don’t stay long; they may only be booked and released prior to trial. Others may stay for a long time because prison space in some states is at a premium.

All of them, however, may now be strip searched. No matter how minor the offense for which they were arrested.

That’s what the U.S. Supreme Court decided by a vote of 5 to 4 yesterday.

I’m reminded of what former Supreme Court Justice Robert Jackson said years ago. “We are not final because we are infallible,” he said, “but we are infallible only because we are final.”

Tuesday, March 27, 2012

If You Build It, . . .

"If you build it, they will come." So at least, goes the catch phrase from the film Field of Dreams.

Depending on the context, this sweeping generalization may or may not be true.

For several private prisons in the South, Businessweek reported, it has turned out to be false.

Wednesday, March 21, 2012

Retrofitting the Justice Machine

If the American criminal justice system has become a Rube Goldberg machine, it's because of several problematic premises. The first is an assembly line of behind-the-scenes plea bargains monopolized by lawyers, with only a tiny fraction of cases decided in public trials.

John H. Langbein called attention to this over thirty years ago. His notable essay “Torture and Plea Bargaining” appeared in the University of Chicago Law Review in 1978.

But plea bargaining is far from the only problem underlying the system. Another is relying so heavily on incarceration as a response to crime.

This has created a vast prison system — far vaster now than when Langbein wrote. Many convicted people are kept incarcerated for years at a time, in prisons far from public view. Correctional officers do the dirty work to keep it all running, serving as society’s proxies.

In his new book The Machinery of Criminal Justice, Stephanos Bilbas aims to show not only how this system was constructed. He also seeks to show how more transparency and greater involvement by the general public could be regained.

Based on what I’ve read in his guest post on Doug Berman’s blog, Bilbas, a law professor at Penn, isn’t proposing trying to turn the clock back to colonial times completely. He argues, however, that we can turn the pendulum partway back, so that ordinary citizens can become more aware and more involved in the system administered on their behalf.

More to come on this. I may need to keep this blog going after all.

Tuesday, March 20, 2012

Depraved-Heart Murder

A couple of years ago, I happened to see Fred Kaplan’s book 1959 on a display table at Barnes & Noble in downtown Minneapolis. It caught my eye because I was born in the year Kaplan takes for his title.

At last I’m reading the book, and am finding it thoroughly engrossing.

One figure from ’59 whom I wasn’t too familiar with before opening the book is William S. Burroughs. I certainly didn’t know the shocking story about his fatal game of “William Tell” with Joan Vollmer, his common-law wife.

Burroughs had fled to Mexico because he feared being sent to Louisiana’s Angola State Prison on marijuana charges. According to Wikipedia, he intended to stay in Mexico for five years, until the statute of limitations on the Louisiana charge expired.

One afternoon in 1951, however, Burroughs killed Vollmer in a drunken riff on William Tell. On Kaplan’s account, she had placed a champagne glass on her head and dared him to shoot.

Burroughs picked up his pistol and missed the glass. Instead, he shot and killed his wife.

Though Burroughs was jailed in Mexico City, he ended up serving only 13 days in jail. Wikipedia asserts that Burroughs’ brother bribed Mexican authorities to get him released on bail — and that Burroughs eventually absconded and left Mexico.

Reading about this case reminded me of studying criminal law with Prof. Bruce Berner in my first year at Valparaiso University School of Law. What common law concept did Burroughs’ behavior best illustrate? The phrase “depraved heart” comes to mind.

Monday, March 5, 2012

The Toilet Ratio

Das Boot is an acclaimed German film depicting the grim realities of service on German submarines in the Second World War. The death toll was astonishingly high; about 30,000 of the 40,000 men who served on U-boats never returned.

The claustrophobic conditions also took a terrible psychological toll on the sailors, even before hostilities with other vessels begin.

Onboard the U- boat, the quarters were cramped, foul smells of all sorts filled the air, and there was only one toilet for all fifty or so men.

Curiously, the experience of having to share a single toilet with fifty other men also occurred in an entirely different context: California’s prisons.

Last year, Brown v. Plata, a constitutional challenge to overcrowding in those prisons, reached the U.S. Supreme Court prisons. In his majority opinion, Justice Anthony Kennedy noted that, in some prisons in the California system, as many as 54 inmates shared the same toilet.

Wednesday, February 29, 2012

Thinking Fast and Slow About Sentencing Policy

Daniel Kahneman, a psychologist who studies human irrationality, discussed many subjects last night on Charlie Rose. It was an intellectual bonanza for someone who’d tuned in only to hear Charlie’s panel of pundits analyze the Republican primary horse race.

At one point, Kahneman even alluded to criminal sentencing. To illustrate a concept he called the “anchoring effect,” he referred to an experiment involving the sentencing patterns of German judges.


But Kahneman and Rose did not tackle the clear application of Kahneman’s work to the American prison boom of the past three decades. The connection needs to be made, because the correctional behemoth we’ve created is a leading example of irrationality on a gargantuan scale.

On an intuitive level, we somehow think more prisons and longer sentences will always make us safer. Now it's time to consider the consequences of thinking too fast: warehoused lives, squandered public treasures, and problematic effects on public safety.

It’s time to think not only fast, slow.

Monday, February 27, 2012

The Sense of a Blog's Ending

I’ve had a good run with this blog. I launched it in December 2008, choosing the domain name on Blogger of Righteous Harvest. The name was meant to signify biblical roots and restorative justice aspirations.

I later inserted the title Piercing the Panopticon. This was intended to take on the issue of America’s excessive reliance on prison as a means of resolving social conflict.

Over the last 3-plus years, I’ve tried to tackle topics of large import. In several posts, I took up California’s prison overcrowding crisis. In others, I delved into Michel Foucault’s analysis of the power dynamics underlying the ascendancy of the modern prison.

In 2009, I eagerly followed Sen. Jim Webb’s efforts to create a national criminal justice review commission. In due course, I commented on the failure of his proposal to go anywhere in Congress.

The reasons for this failure became clearer in 2011, when Daedalus and Wilson Quarterly published themed issues on the phenomenon of mass incarceration.

Since joining the board of directors of Prison Congregations of America in 2010, I’ve increasingly attempted to articulate the value of prison ministry — for people on both sides of the walls. Piercing the Panopticon began to take on a new meaning for me: fostering hope in the light of Christ among those in the figurative darkness of prison.

It’s time for me to reboot my blog to focus more clearly on prison ministry. During Lent, I intend to post a few more times here on Righteous Harvest, seeking to sum up the themes of the last three years. I’ll do so, however, with the sense of an ending.

Thursday, February 16, 2012

Horror in Honduras

It shouldn’t take a horrific fire in a foreign prison to make the problem of packed prisons palpable.

But USA Today’s headline is correct, as far as it goes. The terrible conflagration in Honduras that claimed as many as 356 lives should put a spotlight on prison overcrowding.

How strong of a spotlight, though, and for how long?

If the spotlight is strong enough, it will not focus only on Latin America. For the U.S. has struggled for years with its own forms of prison overcrowding.

California has been the most conspicuous case. Many inmates died there due to lack of access to proper healthcare caused by severe overcrowding.

Tuesday, February 7, 2012

Everybody Loves a Winner, Indeed

“Everybody loves a winner,” sang Linda Ronstadt on her 1973 album Don’t Cry Now.“ But when you lose,” she added, “you lose alone.”

One might add: especially in America.

A current case in point came Sunday night, during the Super Bowl post-game ceremony. After the game ended, and we all came back from commercial break, the public address announcer at Lucas Oil Field in Indianapolis introduced NFL Commissioner Roger Goodell.


As a long-time sports fan, I’ve watched such ceremonies many times before. What I expected was for the commish to begin by commending the losing Patriots on their effort. Only then, with the agony of defeat acknowledged and softened, would the winners be congratulated and praised.

Not so, in this case. Goodelll didn’t even mention the Patriots. He started by thanking the league’s fans for their support. This was understandable and appropriate — especially considering that the NFL season began belatedly because the owners had locked out the players in a labor dispute.

From expression of gratitude to the fans, however, Goodell didn’t make the obvious next move. That would have been to recognize the second-place Patriots for a remarkable season that ended one play short of the championship.

Goodell didn’t do that. He ignored the Pats completely and moved immediately to laud the winning Giants for their victory.

What a perverse culture we have to permit such behavior.

And, by extension, what a challenge ex-offenders have, trying to reenter society after being labeled as “losers” because they went to prison.

Tuesday, January 31, 2012

Prisoner Visitation and Recidivism Reduction

Tonight I participated in the winter conference call of the Prison Congregations of America board of directors. We have financial challenges, as many nonprofit organizations after the Great Recession. But the ministry we support — supporting the creation of worshipping communities of faith within prison walls — is growing.

PCA began in 1984, after a white Lutheran pastor named Ed Nesselhuf was called to serve as chaplain in a women’s prison in Maryland where most of the inmates were black. The Lord, they say, works in mysterious ways.

And so the Lord did. By the work of the Spirit, PCA has grown today to include congregations in 11 states, with a twelfth congregation under development in Montana.

One of my fellow board members is Rich Rienstra, who started a prison congregation in Michigan. He shared with the board news of a new report about the value of visiting prisoners. The report showed showed that visiting people in prison can help reduce reoffense rates after their release.

Rienstra cited Pat Nolan of Prison Fellowship Justice Fellowship as his source for this information. When I googled it, however, I found that the recidivism report was actually done by the Minnesota Department of Corrections. It was released in November 2011.

The title of the study is studiedly objective in tone: “The Effects of Prisoner Visitation on Offender Recidivism.” For Christians, though, the subtext is clearly Matthew 25, where Jesus urges us to visit those imprison and promises to be found there.

Sunday, January 29, 2012

Jail Time for Libel? Not in English Language Version of 'The Girl With The Dragon Tattoo'

Translating a popular novel from one culture into a film aimed at another is certainly fraught with challenges. It’s essentially an act of double translation: from one culture to another and also from one artistic genre to another.

A host of artistic choices have to be made. Whatever the end result, it isn’t merely a matter of transposing the content from Form A to Form B.

Yet how odd it initially seems that an American film version of a European crime thriller omits a jail term served by one of the key characters. That is what writer / director David Fincher chose to do, however, in his Anglo Saxon take on the sensational Swedish novel The Girl With the Dragon Tattoo.


In the Stieg Larsson original, muckraking journalist Mikael Blomkvist must serve a couple of months in jail as part of his sentence after being convicted of libeling a notorious business tycoon. In Fincher’s film, the sentence consists only of fines, with no jail time or even probation.

One might have thought that including the jail term would be quite natural in a film aimed at American audiences. After all, we are the country that leads the world in incarceration rates, the country sometimes called A Nation of Jailers.

Fincher probably felt that the very liberality of the conditions of Blomkvist’s confinement would make it unintelligible to many Americans. For example, Blomkvist gets to choose when he will serve his jail term. Such discretion is little known in our system, geared as it is toward punishment.

Similarly, the jail term itself, when Larsson’s Blomkvist does serve it, turns out to be a positive experience for him - more like going to a summer camp than to a hellhole. This contrasts sharply with the American perception that a jail term must inevitably evoke constant fear and trembling.

Wednesday, January 11, 2012

A Meta Question For Criminal Justice Research

America spends massive amounts of money on criminal justice — especially on prisons.

It’s big business in a country that incarcerates over two million people and keeps millions more on probation or parole. Nationally, the annual cost to incarceate so many people approaches $70 billion, according to estimates by the Economics of Crime working group at the Bureau of Economic Research.

Of course, America does tend to do things in a big way. I was reminded of this tonight, when listening to Fresh Air. The guest was author Matthew Aid, who said that the number of intelligence analysts working for Uncle Sam has ballooned to 210,000 in the wake of 9/11.

This led me to wonder: If America can afford 210,000 intelligence analysts, what about criminal justice analysts? Is the amount of research that is done to help guide decisions in our sprawling justice system even remotely proportionate to the system’s expense?

The healthcare system has the Centers for Disease Control, the National Institutes of Health, and other institutions devoted to research. Their funding is quite ample and their role in developing guidelines for hte delivery of care is significant.

What about criminal justice? It’s true that the National Institute of Justice, an arm of the U.S. Department of the Justice, supports research and issues grants for demonstration projects. There are also various research agencies at the state and sometimes even the local level.

But does our society really invest in enough research to develop an adequate level of knowledge about how the criminal justice system is performing?

Monday, January 9, 2012

Charlie Rose and Criminal Justice: The Dog That Did Not Bark

Charlie Rose's talk show on PBS is a quite remarkable, if highly selective, record of our times. Visiting foreign ministers, actors touting a current movie, and an array of authors make the visit to Rose's studio in New York.

One subject Rose scarcely touches, however, is criminal justice. In the decade that I've been watching the show off and on, I've never seen one devoted to any aspect of the justice system.

This very absence says something about the lack of public dialog of policing, sentencing, and corrections in our public culture. It reminds me of the Sherlock Holmes story where Holmes drew telling inferences from a dog that did not bark.

The dearth of discussion about justice policy on Charlie Rose is like Holmes's dog that did not bark. What is the silence saying?