Counting the Beans While Rome Burns

For tweve years, dating back to 1997, the Secuties and Exchange Commission strongly suspected that a billionare businssman named R. Allen Stanford was operating a Ponzi scheme. But the SEC did not bring fraud charges until February 2009,

How could this be?

In April 2010, the inspector general of the SEC attempted an answer. It was not due to "any improper professional, social or financial relationship on the part of any former or current SEC employee," according to the IG's report. This finding came despite evidence that a SEC enforcement official who helped block full-scale investigations of Stanford's activites later served as his legal counsel.

The inspector general did find, however, that "institutional influence" was a factor in the repeated decisions not to investigate Stanford more thoroughly. "Institutional influence" is the IG's shorthand phrase for a stats-obessed metrics mentality that prevailed within the Forth Worth office of the SEC for over a decade. Senior agency officials believed they were being judged by their managers on the sheer number of cases they brought, and therefore discouraged the enforcement staff from pursuing challenging cases. Stanford's case wasn't a "quick hit," so time after time it got shelved - until the changing of the guards to the Obama administration.

I'm not surprised to learn of utter imcompetence bordering on malfeasance during the George W. Bush years. What I'm struck by, rather, is that the inaction in the face of ongoing fraud began during the Clinton era. How does one account for this?

Jason Linkins has very good blow-by-blow account in The Huffington Post.

In terms of the underlying ideology, it surely has something to do with the often-toxic tide of Reaganism that continues to wash through American public life. If government is supposed to be the problem, not the solution, then one option is to "starve the best" - keep cutting the funding, yet still somehow expect the same services.

Having worked in state government in the late 90s and early 2000s, I remember quite well the building pressure to do more with less. Al Gore himself presided over the Reinventing Government initiative that was so popular back then. Small wonder, then, that major balls got dropped while bureaucratic managers counted the beans.

Kenneth Young and Transformative Suffering

Aleksandr Solzhenitsyn charted the depths of degregation within the Soviet prison system in his landmark book The Gulag Archipelago. In the preface to the book's first volume, he wrote, "I have absorbed into myself my own eleven years there not as something shameful nor as a nightmare to be cursed." With his unshakable commitment to write about it, to honor those who suffered and perished, he could even speak of a sense of love for the "monstrous world" from which he had emerged.

At age 24, Kenneth Young has already been imprisoned for nearly as long as Solzhenitsyn. When he was 14, on the mean streets of Tampa, Kenneth was forced into helping his mother's drug dealer commit a string of armed robberies. The 25-year-old drug dealer threatened to harm Kenneth's mom, 16-year-old sister, and even the sister's baby if Kenneth did not participate in the robberies. Kenneth and the dealer were caught, and a prosecutor charged Kenneth as an adult. Then a judge who now says he didn't understand the law sentenced Kenneth to life in prison without parole.



Last Friday, Nightline broadcast a segment on Kenneth's story. Terry Moran travelled to the maximum-security prison in Claremont, Florida, to interview Kenneth, who is one of more than 100 people around the country who are serving sentences of life without parole for crimes not involving homicide that were committed when they were under 18. Following a Supreme Court ruling earlier this month, people in this group may now have a chance to be considered for release.

Kenneth Young's quiet dignity during his interview with Moran was remarkable. What must it be like to wake up every morning in prison knowing you have been sentenced to die there for succumbing to threats issused by your mother's drug dealer at age 14? It could be soul-destroying. Yet like Solzhenitsyn before him, Kenneth has clearly gone inward and "absorbed into himself" the entire experience of being given such a monstrous sentence. He prays daily, has a learned a trade (barbering), and longs to become a positive mentor for his young nephew.

At the time Kenneth Young was charged as an adult, the prosecution claimed he was a "menace to society." But Kenneth did not have a single prior conviction before he was sentenced to life without parole. The judge who sentenced him, J. Rogers Padgett, has admitted he did not understand Florida's frequently-changed sentencing law at time he imposed the sentence. Judge Padgett has submitted an affidavit stating, "It was not my intent that Mr. Young never be considered for release."

When told by Terry Moran that Judge Padgett had (at least partially) recanted, Kenneth Young took the news with the perspective that only transformative suffering can bring. His sentence was a death sentence, he said - no matter what the judge calls it now, or what he thought the parole board would do.

One Lewd Act and It's Off to Prison for Life

On April 12, a judge in Nevada sentenced a 34-year-old woman to life in prison for kissing a 13-year-old boy, getting him to touch her breast through her clothes, and asking him for sex.

At trial, the woman admitted to roughhousing with the boy, but said she was intoxicated and did not remember more beyond that. Intoxication is of course not a defense, and committing lewd acts with a minor is no minor thing.

Even if she is released on parole after ten years, however, Michelle Lyn Taylor must register as a sex offender and be subject to lifetime supervision. As her defense attorney pointed out, Ms. Taylor's sentence is longer than if she had killed the boy.

From press accounts, it isn't clear why the district attorney chose to charge her under a statute carrying such a heavy mandatory minimum sentence, and why no plea bargain was offered. The jury was not told that a guilty verdict would carry such a severe sentence, and surely no one in the Legislature anticipated that the statute would be used this way. Too often, the right hand doesn't know what the left hand is doing in the American criminal justice system - and people's lives are unredeemably ruined as a result.

That's why Doug Berman, in his sentencing blog, notes that this could be a test case to probe the meaning in non-capital cases of the Eight Amendment's prohibition against cruel and unusual punishment. Or is it possible, as Berman speculates, that there are additional facts about the case that have not been made public?

Roethlisberger and Prosecutorial Discretion

Barhopping with friends in Milledgeville, Ga, to celebrate his 28th birthday, Pittsburgh Steelers' quarterback Ben Roethlisberger apparently picked up a 20-year-old woman and may or may not have sexually assaulted her in a bathroom.

On April 12, about five weeks after the March 5 incident, Ocmulgee Circuit District Attorney Fred Bright announced he would not bring rape charges against Rothlisberger. The young woman told police she had been sexually assaulted, and a medical examination showed evidence of vaginal bleeding, as well as a cut and bruises. There was insufficient DNA to make testing viable, however, and Bright was concerned about the challenges of proving guilt beyond a reasonable doubt.

"We do not prosecute morals. We prosecute crimes," the prosecutor plausibly told the press. In some ways, that is a valid distinction. It's very difficult to convict a star athlete, past or present, in this type of case. The Kobe Bryant case in Colorado in 2004, which turned on whether the sex was consensual, was ultimately dismissed by the judge amid concerns about revictimizing the alleged victim. A year earlier, former Minnesota Twins star Kirby Puckett was acquitted of groping a woman in the bathroom of a restaurant in Eden Prairie, Minn.

Unlike those two incidents, however, the Roethlisberger case could conceivably be distinguished because the woman involved may not even have been of legal drinking age. According to the facts made public, Roethlisberger paid for shots of alcohol for the young woman and her sorority sisters. And that alcohol could in turn have undermined her ability to give full consent to whatever acts occurred in the bathroom with Roethlisberger.

Though the DA chose not to bring charges, Roethlisberger has not escaped consequences entirely. NFL Commissioner Roger Goodell, ever vigilant in protecting the league's image, quickly met wtih Roethlisberger and is considering a possible suspension or mandated counseling. Goodell takes his disciplinary role seriously, as he showed last season in insisting on a proper show of remorse from Michael Vick before reinstating him after Vick served a federal prison term for involvement in an egregious dog-fighting operation.

And then there's the court of public opinion. Roethlisberger may not be in for a public shaming by the Steelers' owners, as Tiger Woods was at the hands of Augusta National Chairman Billy Burke. But he would do well to consider the message his alcohol-fueled actions are sending to the thousands of boys who follow football so faithfully.

76,000 Acres, One Life

On December 16, 2008, a 64-year-old man facing a felony charge of starting a destructive forest fire in Minnesota’s Boundary Waters Canoe Area wilderness committed suicide, three weeks before his federal trial was scheduled to begin. Stephen Posniak, a retired federal employee in Washington, D.C., had discovered the BWCA while getting a master’s degree at the University of Minnesota. For nearly twenty-five years, he had made trips there virtually every year, typically in early spring when the wildlife come out of hibernation.

During Posniak’s visit in May 2007, however, a wildfire broke out along Ham Lake and grew into the largest in the area since 1918. Due to extremely dry conditions, it eventually burned 76,000 acres in Minnesota and Ontario, consuming 138 buildings on the American side of the border alone. Luckily, no one was seriously hurt, though the government estimated the property damage at $11 million and the fire suppression costs at $10 million. Mr. Posniak came under suspicion and in October 2008 he was indicted on a felony count of willfully starting the fire, as well as misdemeanors for failing to extinguish a campfire and making a false statement to a forest officer. With trial coming up and the government unwilling to drop the felony charge, Mr. Posniak shot himself in his backyard. His attorney accused the U.S. attorney’s office of overcharging, and even people who lost property in the fire questioned whether justice was served in prosecuting Mr. Posniak so severely.

The Posniak case is of course a vivid reminder that in America’s adversarial justice system, prosecutorial discretion looms large. Mr. Posniak is not the only accused person in recent months to apparently succumb to the pressure of criminal prosecution acting upon the excruciating inward dynamics of shame; in August, Bruce Ivins, a scientist suspected in the 2001 anthrax mailings, took his own life just before he was about to be indicted. Yet Mr. Posniak’s life and death are also an urgent invitation for us all to treat each other more humanely and be prepared to accept the consequences of fate. When asked whether she bore ill will toward Mr. Posniak, an 82-year-old woman who lost most of her possessions in the Ham Lake fire, including her great-grandparents’ Norwegian bible, said she did not. Rather than scapegoating Mr. Posniak, she simply spoke of how life can be really hard sometimes. Or, as Yeats once wrote, “we begin to live, when we have conceived of life as a tragedy.”