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.