Prisons and Society

The Summer issue is dedicated to mass incarceration and problems.

Dædalus was founded in 1955 as the Journal of the American Academy of Arts and Sciences and established as a quarterly in 1958. It draws on the enormous intellectual capacity of the American Academy, whose Fellows are among the nation's most prominent thinkers in the arts, sciences, and the humanities, as well as the full range of professions and public life. Features in the recently redesigned magazine include fiction, poetry, and a Notes section with original works by distinguished members of the American Academy.

Silvia Clute writes in Oped News that one solution is called Restorative Justice. Click on title of this post to link to her article about the Conference in the U.K.

Whats the Point?

Jumping into the thicket I am going to venture that award winning producer Roman Polanski has done his time. It is 30 years of self imposed exile. To jail him now is merely a gesture to the idea that justice must be strict admitting of no compassion, that to set an example Roman must be punished more than that which he has imposed on himself. I disagree with this justice. Justice should be able to bend over backwards to fit unique circumstances.

What happened was rape and illegal. The victim no longer wishes to see Roman punished. It is over and has been for a long time. The state's interest in putting Roman in jail is far from clear at this point, has no point. The exile has been long enough.

On this, Robinson at Wapo has spoken here, calling the crime "brutalization." In his opinion, I'm not sure what he really thinks. Should Roman go to jail? I guess he thinks so. What purpose would it serve?

Hate and Fear

Repairing Our Broken Justice System is the title of this piece found at Nation Mag, by Gara LaMarche, director of The Atlantic Philanthropies. I wonder if this is possible. Senator Webb's Criminal Justice Commission Act is directed at a similar issue: Hate and Fear institutionalized by wars on terrorism, drugs and now sex offenders.

He writes: The Constitution Project report, from a bipartisan commission chaired by Walter Mondale and William Sessions, provides a blueprint for action by states and the federal government. Implementing these steps must be a central element of infrastructure repair for the justice system.

and,

the new domestic human rights movement points the way to a different future. Here, too, there is a blueprint: Human Rights at Home, a collaborative effort of more than forty organizations moving forward through the Campaign for a New Domestic Human Rights Agenda with a multipronged education and advocacy strategy.

and,

At the center of our vision is achieving the state of justice in which race and gender and ethnicity are not the determinants of who ends up in prison or on an ICE airplane to the Mexican border, or winds up dead at the hands of an abusive husband or an out-of-control cop or soldier. We will have achieved a small but important part of that goal when the Supreme Court looks like the America of those whose rights it is the ultimate guardian. Yes, the Court should have some connection to and empathy with those who come before it challenging a powerful interest, whether it's the state or a rich corporation.

Bits of History

Speaking of the Fourteenth Century, which some historians have compared to our own Twentieth (that's the last one, not the 21st--this is yet to unfold), and of Religion and Chivalry, the dominant political idea of the ruling class, in A Distant Mirror, Barbara Tuchman writes:

King Arthur's knights adventured for the right against dragons, enchanters, and wicked men, establishing order in a wild world. So their living counterparts were supposed, in theory, to serve as defenders of the Faith, upholders of justice, champions of the oppressed. In practice, they were themselves the oppressors, and by the 14th century the violence and lawlessness of men of the sword had become a major agency of disorder. When the gap between ideal and real becomes too wide the system breaks down...the sword is returned to the lake... Violent, destructive, greedy, fallible as he may be, man retains his vision of order and resumes his search.

Criminal Justice Symposium

A criminal justice Symposium! The press release is at the link: "Alternatives to Incarceration"

Here's the meat:

Presenters at the symposium include federal and state judges, congressional staff, professors of law and the social sciences, corrections and alternative sentencing practitioners and specialists, federal and state prosecutors and defense attorneys, prisons officials, and others involved in criminal justice. Approximately 250 individuals representing the federal and state criminal justice communities, academia, and public interest groups have been invited to attend. Topics to be examined include –

* drug courts and treatment options for certain offenders;
* alternative sentencing options in the federal and state systems;
* restorative justice-based programs;
* prison programs resulting in reduced sentences;
* the Second Chance Act and re-entry issues; and
* collateral consequences of convictions.

UPDATE: A link to "Notes" is here, authored by Kent. The Sentencing Project makes waves there. Not taken seriously by the author of the notes. Apparently the transcript will be made available in E form. HT to Doc Berman (once more).

Politicized, Corrupted, Justice

How far does the political influence reach? Infinitely. Read the rest of this one, from WP, which begins:

GUANTANAMO BAY, Cuba, April 28 -- The Defense Department's former chief prosecutor for terrorism cases appeared Monday at the controversial U.S. detention facility here to argue on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials.

Sitting just feet from the courtroom table where he had once planned to make cases against military detainees, Air Force Col. Morris Davis instead took the witness stand to declare under oath that he felt undue pressure to hurry cases along so that the Bush administration could claim before political elections that the system was working.

His testimony in a small, windowless room -- as a witness for Salim Ahmed Hamdan, an alleged driver for Osama bin Laden -- offered a harsh insider's critique of how senior political officials have allegedly influenced the system created to try suspected terrorists outside existing military and civilian courts.

Davis's claims, which the Pentagon has previously denied, were aired here as the Supreme Court nears a decision on whether the Military Commissions Act of 2006 that laid the legal foundation for these hearings violates the Constitution by barring any of the approximately 275 remaining Guantanamo Bay prisoners from forcing a civilian judicial review of their detention.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Candidates on Policy

Where they stand, via Sentencing Project.

Justice is Coming to Dallas?

Now that's what I call MONEY, and I don't mean coinage, but changing direction the right way.

From Morning Edition, NPR (2/23) (Wade Goodwyn) Some clips for future reference:

"Dallas' new district attorney, Craig Watkins, says he will open his files to the Innocence Project and work with the group to examine hundreds of cases over the past 30 years. The goal is to see whether DNA tests might reveal wrongful convictions. *** Watkins was elected the first black district attorney in Texas.***

"It's a whole different world in the Dallas criminal justice system," says defense attorney Gary Udashen. "It is a world where if a client of ours is innocent, we feel like there's openness in the District Attorney's office to hear what we have say, to look at what we have to show them, where we don't anticipate resistance every step of the way."

Udashen's firm alone has had seven Dallas clients who were convicted, sent to prison, exhausted their appeals and then ultimately — with the pro bono help of Udashen and his colleagues — were found to be innocent. ***Udashen says that Watkins has decided that defending wrongful convictions is not going to be part of the job.***

So Watkins is opening his files to the Texas Innocence Project. North Texas law students supervised by seven veteran former prosecutors and criminal defense lawyers will begin deciding which cases merit further investigation.

"In a state that is a national hotspot, Dallas is the hottest of the hotspots in state right now," says Jeff Blackburn, the Innocence Project's Texas director. "What'd happened in Dallas is that a lot of samples, unlike other any other parts of the state, were preserved, and they're still there."***

It would be safe to say that right now Dallas is on the edge of opening up in a very revealing way what the system in Texas is really all about," Blackburn says.

What Ails Republicans?

Sorry, I only made one entry yesterday; I usually strive for two, but it is getting a little busier right now (or am I just trying to do a little more other stuff?). Enjoy, and comments, guest blogging are always welcome. Heard on C-Span Radio this morning on my daily commute, "mean tough guys" in prisons should be given a chance to serve in the military and not waste their youth. There are, admittedly, a lot of ready, willing and able men (and women) who are probably not too far gone, dangerous, or feeble-minded to serve. There is a good solution to the Army's/Marine's recruiting problems. As we know, many of these guys just made one mistake, got caught doing what a lot of other people are doing or have done, and/or simply don't need to be locked up.

Also had an interesting discussion that went (sort of) like this.

Friend: if you want to make a difference in the area of habeas corpus you have to work for the prosecution--they are the only ones who have the power to do anything (about a wrongful conviction or faulty/illegal confession for instance).

I was not able to articulate the fact that in our adversarial system too many prosecutors will NOT go out of their way to fight for right, but find that to advance in their careers they must litigate every "nook and cranny" of the law, and look the other way when Brady evidence is obvious, or just when a case might smell bad from the beginning. That mean "not caving" even when you think the other guy is right, although justice might require that. That is why justice is so hard to come by in places. It is true, my friend's point, that in habeas prosecutors hold all the cards because so few defense lawyers do that kind of work and so few prisoners can pay a lawyer after they've spent their last dime fighting on trial, appeal, etc.. Only in death penalty cases is a lawyer required in habeas. In all other cases prisoners are not constitutionally entitled to a lawyer.

My experience in Virginia, a few years back, did however give me some faith that prosecutors tried to do the right thing most of the time but this does not hold true for all too many of the other jurisdictions, especially in the South, Old South, Deep South. Evidence of that is still, sadly, seen every day.

What ails the Republicans? Find out from Newsweek.

Look what I found:

One of the ill-concealed subtexts of my book Our Undemocratic Constitution is that my colleagues in the legal academy pay much too much attention to the rights-conferring parts of the Constitution (which are often exactly what Madison predicted they would be, "parchment barriers" that are all too permeable given the right degree of public panic and malleable judges) and too little attention to the "hard-wired" structural features that, I now believe, explain much more about the actualities of American politics than do the clauses that law professors fixate on...

Get the rest of piece here: (from The New Republic)

This is why I love the guys over at TNR:
Last week the Washington Times op-ed page, in the form of the
oleaginous (oily? not holy oil? greasy?) (more here)
Tony Blankley, voiced its concern that Hillary was going to rough up Barack Obama. Now it's the Wall Street Journal's turn. Here's John Fund ...

Also, found this

over there.

(what I really meant to say, here, was "one of the next future presidents...")

Veto of Banishment Law Upheld:

“As parents we need to be constantly vigilant of our children. Preventing sex offenders from living here does not prevent them from being here,” Mr. Ossing said. “This law is going to be another unenforceable feel-good law.” Finally, common sense seems to be taking hold. Read this here and more here.

In the Richmond Times Dispatch (in police beat somewhere, a new federal pd office opens in Western Virginia). Andrea Lantz Harris and Frederick T. Heblich are the first lawyers hired in a new defender's office serving the Charlottesville and Harrisonburg divisions of the U.S. District Court for the Western District of Virginia.

I am adding Richmond Times Dispatch and probably Baltimore Sun and Annapolis papers to the MSM links (at right).

"No New Prisons" Campaign starts up in Washington State.

More on the Drug War, Borden's blog.

Trends and Updates: More on Musladin

Google blogsearch Skilling (as in Jeffrey) for all the blogs on going straight to prison. It usually means getting an early start on the time, inevitably, to be served pending appeal. It is a significant blow, however, when the defendant has even a slight chance of winning remand or reversal on appeal.

A Poll, always interesting, about Government and Privacy here from Washington Post:

Sixty-six percent of those questioned said that the FBI and other agencies are "intruding on some Americans' privacy rights" in terrorism investigations, up from 58 percent in September 2003. Thirty percent think the government is not intruding on privacy.

Support for intrusive tactics has dropped even more significantly during that time. A bare majority, 51 percent, feel the tactics are justified, down from 63 percent three years ago.
The poll was conducted by telephone from Dec. 7 through Monday, and the results have a three-percentage-point margin of error.

RE: Carey v. Musladin (my earlier posting here -- opinion here Carey v. Musladin). Justice Thomas:

This Court has recognized that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial. Estelle v. Williams, 425 U. S. 501, 503-506 (1976); Holbrook v. Flynn, 475 U. S. 560, 568 (1986). In this case, a state court held that buttons displaying the victim’s image worn by the victim’s familyduring respondent’s trial did not deny respondent his rightto a fair trial. We must decide whether that holding was contrary to or an unreasonable application of clearly established federal law, as determined by this Court. 28 U. S. C. §2254(d)(1). We hold that it was not.

***Given the lack of holdings from this Court regarding thepotentially prejudicial effect of spectators’ courtroomconduct of the kind involved here, it cannot be said that the state court "unreasonabl[y] appli[ed] clearly established Federal law." §2254(d)(1). No holding of this Courtrequired the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to oran unreasonable application of clearly established federal law.

My thought: SCOTUS could simply decline to establish clear law, accomplishing the aim of making it impossible for lower courts to grant relief under the AEDPA standard. Indeed, Justice Thomas's opinion clearly reflects a reluctance to provide much, if any, guidance as to what the substantive law is. He has simply found no clearly established law on the issue and that is the end of the matter for him. Too bad that all SCOTUS cases are not so easy to resolve, and that two of the often "liberals," Justices Ginsberg and Breyer, joined in this swat against justice and stare decisis.

If the justices do not wish to discuss the substance of the law, what is and was, and what could or should be, then why grant cert at all? The answer in this case? Just to reverse the Ninth Circuit. How does this advance the stated goals of the Court's review powers?

The good thing might be that the case leaves open the door just a skosh for a similar claim in which better facts might be found. But what better facts could there be involving possible coercion, intimidation, in the courtroom? It would seem that there MIGHT be a matter of degree in question, but when it comes to coercion or intimidation it is hard to draw the line between how much is too much. The analogy is this: how much pain is too much? Just cut off the pinkie, maybe...or just the tip of the pinkie finger, that won't hurt quite as much.

The real lesson here is that you can not shoot and kill somebody and expect to get habeas relief afterwards. This is page 1, section I, para. 1 of the opinion: On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin’s estranged wife, Pamela. Game, set, match, checkmate, strike three, game over. Simple as that for this panel. That is not good news for the law. Because the point of the law is to make darn sure that you did the killing (with requisite intent), not that there was one.

Giving Aid and Comfort to ... Injustice is the Enemy

It is the rare generation that is given, and then seizes, the opportunity to make history. Not since WWII and the internment of Japanese-Americans and trials of German POWs have the courts had to become so actively engaged in prisoner litigation. Yes, of course, you have the “run of the mine” habeas corpus cases and lots of them perennially, but the recent so-called “terrorism cases” have become the hot potato for judicial review on a broad scale, involving questions of jurisdiction, federalism, separation of powers and Executive prerogative, in conjunction with American and enlightened notions of fundamental civil liberties. After a long swing of the pendulum toward "get tough on crime" (aka "lock'em up and throw away the key), perhaps a throughgoing review of this (including torture and abuse in our prison and criminal justice system) has been long overdue. We, Americans, as well as our bretheren overseas, confront a world that our parents and grandparents could never have dreamed up.

SCOTUSblog has this update:

Since the Supreme Court's decision in Hamdi v. Rumsfeld on June 28, 2004, a question has lingered over the President's authority to hold war-on-terrorism detainees who are captured inside the U.S., not in a foreign battle zone. The issue did not get finally resolved in the highly visible case of Jose Padilla because the government shifted him to a criminal trial court before the Supreme Court could rule. It is now unfolding in the Fourth Circuit Court, in the case of Al-Marri v. Wright (Circuit docket 06-7427). But, on Monday, the Justice Department sought to turn that case into another test of Congress' power to strip the federal courts of authority to hear habeas challenges to detention, even as Al-Marri's lawyers filed their opening brief on the merits (brief can be found here).
***
the Justice Department, in a filing also submitted on Monday, argued that the Fourth Circuit no longer has any authority to decide Al-Marri's case, because it is a habeas challenge and Congress in the new Military Commissions Act of 2006 stripped the federal courts of all authority to rule on detainees' habeas cases. The case thus should be dismissed, the government argued in the filing, found here. The Department said that the two sides had agreed on a briefing schedule on this motion, with Al-Marri's response due Jan. 5 and the government's reply Jan. 17. (The Circuit Court has tentatively set the week of Jan. 31-Feb. 3 to hear the case.)