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.