Since the Ricci opinion came out, it seems only right to talk about two cases that will be before the court soon. The issue of JLWOP will come before the Supreme Court soon - law firms all over the country are preparing amicus briefs in the effort to sway the courts one way or the other. The two cases in question are both Florida cases, chosen because they are both instances of JLWOP for crimes that didn't result in murder. In one, Joe Sullivan was sentenced to JLWOP for raping at 72 year old woman. He was 13 at the time and it was 1989. In the other, Terrance Graham got life for committing a home invasion while on probation for robbery. He was 17. I think these cases were taken because they aren't murders. It's hard to argue for any kind of leniency (if you call life with the possibility of parole leniency) when someone has been killed. The backdrop of this case is the Court's decision that the giving a juvenile a death the death penalty violates the 8th amendment.
My fear is that in settling the JLWOP issue - there will be other issues around sentencing that don't get resolved. In a state like Virginia, for all substantive purposes there is no difference between sentencing a juvenile to 55 years or life - because there is no parole. In the juvenile death penalty case Judge Kennedy said that even the most heinous crime isn't evidence of a child that cannot be rehabilitated. He said the heinous crimes are not "evidence of irretrievably depraved character." That's why the United States leads all industrial countries in incarceration by a nice margin - and why we are the only industrialized country to sentence juveniles to life without parole.
The United States leads all industrial countries in incarceration by a nice margin - and why we are the only industrialized country to sentence juveniles to life without parole. The sentencing project says that there are about 1750 juveniles currently serving JLWOP and that of those nearly 2 thousand 73 were thirteen or fourteen when they committed their crimes. I can't begin understand never giving someone who was fourteen at the time of their offense a chance to walk in front of a parole board and plead his case. (Especially when the rate of parole is as low as 2 percent in some states) More than that, if the deterrent value of a life sentence for an adult is common knowledge - it's also true that researchers have shown that juveniles don't take that knowledge as a deterrent.
The real thing, away from the statistics and the gory details of crimes that haunt families and communities for long periods of time, is that I don't think our justice system has evolved to something more productive and effective than it was fifty or a hundred years ago. In most other industrialized nations, life is something conceivable like 30 years or 50 years, and parole is an option. These nations have lower incarceration rates than the US - they have less crime. Somewhere our justice system got off track - we replaced medieval guillotines and rope for jail cells that don't aim to rehabilitate. I hope the SCOTUS gets it right on this one.
The Beautiful Struggle: A Father, Two Sons, and an Unlikely Road to Manhood 
Here's hoping Jim Webb can also work some miracles in congress. If anyone can do it, I think he can.
good post. it's quite the paradox in American. out of one side of our mouth, we talk the vulnerability and hope we have in youth; then out of the other side, we accuse them of being incorrigible beings.
it's a shameful policy that needs to be overhauled. there's an abundant amount of research explaining the salient differences in brain anatomy and decision-making process between children and adults, yet we ignore it to be "tough on crime."
DB, these kinds of sentences are heinous but as you the question of "rehabilitation" is not an easy one, too many kids are on an almost fated path from special-ed for behavior/attention issues to PINS/juvie probation, to mental health wards/homes for aggresive/defiant behaviors, to juvie hall and then when they get old enough off to jail and then prison, without a serious investment of resources in these areas many young people are going to spend the majority of their lives incarcerated one way or another but no one seems particularly motivated at the local level to address these kinds of problems and fed.regs aren't likely to help much, they don't in the mental health system, so do you know any good models of reform that we can follow like Jeff Canada has done for schools?
sorry should read "are heinous but as you know the question of"
I think the reform models are out there - and currently, most of the substantive reform is going on in the area of juvenile justice. I say that, because the juvenile system has rehabilitation as its central aim - at least the professed aim. So with that, I'd remark that the troubled juveniles who end up committing the murders, the rapes, the robberies were first failed in the juvenile system.
Which leads me to models of reform for the juvenile system - I'd check out the missouri model, that you can read about here: http://www.stateline.org/live/details/story?contentId=288904.
I'd also look at the places who are moving to relying on risk based assessment to determine what kinds of treatment a kid needs. The Annie Casey Foundation website has a lot of information on the impact of their JDAI policy. I'll post some more links in a minute to specific policies that have proven to work. And again, these are to help the juveniles before they get to the point of murder.
I think that sane sentencing policy requires supportive supervision of ex-prisoners, especially making sure that they have jobs and housing.
That's not as easy as it sounds. No offense, because on the whole, I agree. One of the big issues in Massachusetts right now is CORI reform; i.e. how to reform background checks so ex-cons have at least a shot at getting a job.
As a college educated, non-ex-con, it's hard enough right now to get a job. An ex-con, even though he or she may be completely reformed, must find it damn near impossible to find a job they can live off of.
Agreed. It's an indictment of our society that decent jobs are a scarce commodity. Particularly since there's plenty of necessary work not getting done – sanitation, maintenance, health care, elder care, child care, green retro-fitting, to name a few. (Although, not all occupations are suitable for all ex-offenders.)
It's JUSTICE Kennedy, not JUDGE Kennedy. Not a mistake I would hold against a legal layman, but it suggests that you are not really qualified to render opinions on legal matters that are intended to be taken seriously.
That's not really true. It just means I was careless. But if you care to show why you feel I'm not qualified by commenting on what I said that's cool and would be far more productive.
Maybe I was too harsh there. We're all human. I just, as a lawyer, hate when people run their mouths about legal issues (esp. Roe v. Wade) that they really don't understand. I suppose if you have been through the system (I believe I read that in a previous post) you have a different kind of, but equally valid, understanding of the law.
I understand your point. But seriously, I've been on panels with lawyers from all over the country, I've spoken in front of a conferences with people who do this for a living, and next month I'll be on an ABA panel moderated by Charles Ogletree on collateral consequences. And I picked up a bootleg paralegal certificate while locked up.
I know none of these things make me an expert - but those things, and the dozens of folks I know who were certified. The young boy I know who received an Lnote at 14 for raping an older woman makes me qualified. (a despicable crime I know, but I'm not so certain the people arguing it was just would have wanted to be him in the cell with the dudes hovering over him.)
The kid who got 56 years for an attempted capital murder where no gun was fired. I think my knowledge of these real lives give me a right to run off my mouth - and like I said in the post, it's complicated - but I've done some of the work to understand the issues. And I want you to challenge me so that I'm forced to better understand the issue, so that I'm a more effective advocate for the change I want to see.
Let me be clear, I think that DOES make you qualified (I didn't know those things), and regardless, I agree with your position on the merits; I think juveniles should not get anything near 50 year sentences for anything, and that as per Justice Blackmun, the death penalty should be abolished.
dwayne,
i'm sympathetic to those who pick up legal knowledge by virtue of their studies, their personal experiences and i absolutely believe that someone can learn a heckuva lot without going through law school, taking the bar and getting a license from a state. (or the district of columbia.)
but one does acquire a certain perspective on the law and cases and everything that goes into an understanding of our legal system by being the disinterested guy who has to negotiate his or her way through the system on behalf of others.
understanding the system because one has had to deal with it on a personal level provides one kind of knowledge. a knowledge that should not be discounted. but actually working through the system as a person who is maintaining a certain emotional distance is quite another.
the personal experience certainly makes you qualified to speak on certain matters. and paralegals often are extremely knowledgeable about many matters. but there is much, much more that can only be learned by dealing with the entire range of the legal system.
unfortunately only lawyers can get that kind of knowledge.
frankie d,
i have to disagree with you. I feel like that's the line politicians sell us, that's the line that teachers sell us, and that most other people who want a strangle hold on the conversations that affect us all. But this is the thing, we can talk about who is qualified to say what, or we can talk about the thing. My whole thing now and always is, if you know more than me, or can offer an insight that I can't see because I didn't go to law school - offer that. We'll all judge whose comments has merits, and I will learn something and use it later.
I could go to law school tomorrow. I could be a law student right now. But what has to be relevant is what I say as a lawyer, law student, layman or what have you.
Also, believe me - it is not my personal experiences that make me qualified to speak on anything. I can name a hundred people right now who I wouldn't considered qualified to speak on prison who are in prison - and I know you can name a few incompetent lawyers or what have you. What makes any of us qualified is what we have to say, how long we've thought on it, how many perspectives we have brought into our opinions.
But the larger point is we have to wrestle with ideas, once the speaker has shown a modicum of credibility. I think I've shown a trace of sense in my posts. And I want someone to wrestle with that. Also, who says the person who is the lawyer is disinterested? They might be as passionate as I am - and I mention that because you mentioned the characteristic "disinterested" as if it suggested a lack of bias.
Right now, I am the interested guy speaking on the behalf of others. I have no personal stake in this - no more than any of us has as a citizen.
dwayne,
"disinterested" simply means that the guy in the suit next to the litigant is not going to go to prison or lose any money if he or she loses a particular matter.
i didn't say, nor would i ever imply, that an attorney necessarily lacked passion for, or an interest in, whatever matter he was concerned with.
i would never ever imply that.
i don't believe that.
but a lawyer has a role to play in our legal system, and ideally, he/she should only handle matters where he/she is not personally involved and is willing to play that role.
there is an old saying, that only a fool would have himself as a client, and that old saying contains much truth. an attorney must be able to avoid emotionally and personally entangling himself in a case, because he/she has a personal stake in it's outcome.
(i'm not talking about the kind of pecuniary interest that one has in a contingency fee case, though an argument might be made that such an interest can also be destructive and not helpful.)
but your contention that you can gain - and have - the same kind of knowledge that an attorney gains is simply literally impossible.
literally impossible.
you cannot sit in a judge's chambers during a pre-trial conference and watch a judge's body language tell you everything you need to know about his/her view or posture on a particular case.
you cannot maintain relationships with prosecutors or judges or other counsel that inform you about cases in ways that are often conveyed in non-verbal ways. attorneys and judges are very adept with this type of communication because one certainly doesn't want to commit certain communications on paper, because that might later come back to haunt you.
you cannot have the experience of negotiating with another attorney on matters that impact the freedom of another person.
you cannot understand the experience of actually trying a case in front of a jury and benefit from the knowledge one gains from that experience.
you cannot stand in front of a court of appeals panel and understand a case after going through that crucible.
of course, you may be perfectly capable of going forward and gaining the credentials that would allow you to gain that knowledge and experience. i would never imagine that anyone was not capable of doing so.
but the idea that a layperson, someone who doesn't experience what i've just noted - along with an entire range of endeavors that only lawyers can engage in - can somehow gain knowledge that can only be gained through experience, well that is just dead wrong.
experience matters.
experience provides one with a certain kind of knowledge that reading books or imagining simply cannot provide.
while i do not think that "the law" is this mystical realm where only the exalted few can enter and decipher its hidden meanings, there are certain practical things that lawyers do routinely that provide knowledge that non-lawyers simply cannot gain.
it's not better or worse knowledge; it's just different.
"I hope the SCOTUS gets it right on this one."
when i read that sentence i had to hold back my laughter.
if there is anything that has become evident with the roberts' court, it's that it is a strictly ideological court that eschews facts and arguments and rules in a fashion that follows a strict and radical right wing agenda.
and getting it right - in the sense of following the law and precedent and common sense - does not appear to be a real concern for this court.
this court's rulings are extremely easy to predict: you simply have to determine the far-right ideological view of a particular issue and you can be certain that the 5 radical, right-wing justices will produce a ruling that follows that view fairly closely.
the only real question is how radically the court will move to impose it's radical views.
will it take a hatchet to prior rulings and come up with brand new law?
(as it just did in the ricci case.)
or will it use a scalpel and make a clean, seemingly minor cut that will cause the relevant law to bleed and bleed and bleed, because the nature and severity of the injury is not very obvious?
(as it did in the recent voting rights case.)
one of the central questions that you have to ask yourself is an extremely easy one to answer: what is the race of the litigant - or litigants - in a particular case?
this court has developed a disturbing pattern of being extremely sympathetic to white litigants, while not being so sympathetic to african-american or other minority litigants.
this may have a lot to do with the fact that there has not been a voice for african-americans on he bench for about 20 years.
at least ginsberg is present to voice the concerns of women.
But this is the same court that threw out the death penalty for juveniles. I haven't read that opinion, so maybe there is something within the opinion that suggests they won't apply the same logic - but from what people tell me there is a belief that they will.
not to nitpick, but it is not the same court.
sandra day o'connor was still on the court when it handed down that decision.
she's no longer on the court.
therefore it is a different court.
by the way, rehabilitation is not necessarily the most important factor for courts in handling juveniles.
not any longer.
even in the court system i represented juveniles in - in a very liberal state - the law has evolved over the last couple of decades.
now, the safety of the community is as important as rehabilitation of the juvenile, and that factor is given as much, if not more, weight.
it's even statutorily mandated.
and practically speaking, in instances of violent acts by juveniles, courts will almost always give more weight to the security of the community when sentencing juveniles. if a kid can be rehabilitated, well that's all well and fine, but the court will always err on the side of keeping what it considers a dangerous individual away from the community.
even most juvenile court judges are elected officials and the pressure that is brought on those judges is enormous and crushing.
no judge, not even a judge handling juveniles, wants to be the judge identified in local papers as the judge who coddled violent, dangerous thugs who just happened to be juveniless.
Rehabilitation is not a matter for the courts - I don't think it ever was or should be. But I do think that judges should use risk based assessments in determining the placements of juveniles. Right now, there is an overwhelming tendency to rely on the juvenile prison model despite evidence that it doesn't work.
A judge who makes a decision based on risk based assessments wouldn't be coddling violent, dangerous thugs - and the real story is that violent offenders make up a small number of the juveniles in the system anyway. A lot of kids get locked up on status offenses.
I guess I think we should apply an equal amount of pressure on judges to follow policies that make communities safer, and that acknowledge that often the offenders will be released back into society.
Also, see how the conversation has shifted to violent offenders? It's because it's easy to frame locking up all these folks around violence, when the majority of people incarcerated aren't violent. Even with the JLWOP issue - a life with parole sentence will still leave the community safe, but would leave a sliver of hope. And a life sentence that caps at 40 years - do you think someone does 40 years in prison to come home and re-offend?
"Rehabilitation is not a matter for the courts..."
what?
rehabilitation is something that is always addressed in courts that deal with both adults and juveniles.
statutorily courts may or may not have to afford it certain weight, but it is almost always statutorily mandated that a court address the issue when handing out a sentence.
i handled literally thousands of juvenile deliquency matters and adult criminal cases and rehabilitation was always an issue that both i and the court addressed directly.
now, whether a court considered a delinquent or an adult amenable to rehabilitation, and whether a concern for rehabilitation was going to trump the perceived need to protect the community, well that was another matter.
but, by law, the court needed to at least address it.
especially in juvenile cases.
for instance, if the court did not consider the possibility that a kid could benefit from say, a placement that emphasized treatment and rehabilitation, rather than incarceration and punishment, that omission in the record would be extremely strong grounds for appeal.
Again, while acknowledging DB's point that academic credentials are not the be-all-and-end-all of authority on any topic, I have to agree with frankie d on this one. As one learns in law school, rehabilitation is absolutely an issue any court considers in any criminal trial. Additionally, they consider Retributive, Incapacitory, and Deterence theories of punishment. If you aren't aware of this, I think it serves as a case-in-point that disinterted and formally trained lawyers are really best-equipped to disquisit on legal issues.
And with regard to the tired old canard that politicians just want people to believe that they need lawyers to navigate the legal system: I'd like to see you successfully argue a complex commercial litigation in a federal court.
"I can't begin understand never giving someone who was fourteen at the time of their offense a chance to walk in front of a parole board and plead his case."
This is the rule because the majority of Americans know that while they are out working for a living people other than them are going to be making the decision about who gets parole. They suspect the people making those decisions will tend to be similar to the actvists who claim Mumia is a political prisoner, or the lawyers who trip over themselves to defend terrorists, or the Ivy Law Professors who spend their effort badmouthing America. And they don't trust these people to care enough about public safety.
They believe this because we already watched it happen, and it's the same reason many jurisdictions have minimum sentences and/or three strikes rules. When the public found out about furloughs, criminals serving ridiculously short sentences, and virtually automatic parole they decided those within the system couldn't be trusted. So they took discretion out of their hands.
nonsense.
those measures, unfortunately, are demagogic, somewhat racist responses to issues that were not really problems.
ask most judges and prosecutors and anyone else involved in the system and the vast majority will acknowledge that they hate the strict sentencing guidelines and three strikes laws and other restrictive rules.
while it may give a prosecutor or judge a hammer in a particular case, most often those laws restrict the ability of competent professionals to do the jobs they've been hired to do.
they become clerks, rather than professionals exercising their judgment.
there never was a real problem with murderers getting released and "criminals" serving ridiculously short sentences. certain politicians attempted to sell that story to the public, for their own benefit, but the reality is far different.
anyone doing criminal defense work over the last 20 years knows that the myth of the lenient judge, and scores of criminals getting off or out of prison because of technicalities and easy parole boards is simply a myth and nothing more.
Willy Horton singlehandedly destroyed faith in the American penal system.
Frankie:
Desiring safety is demogogic. Calling a desire for safety "somethat racist" is what exactly? I can't decide if this is funny or sad. FYI, there are racist methods to emphasize safety, or you might play on racist fears. But by itself a desire for public safety is not racist. Your claiming so reveals how little you understand the issue that you cannot separate the base issue from other events.
And you might read closer. I said the point was to remove the discretion of the lawyers. You respond that they don't like it, as if this somehow proves something. Of course they hate it.
You assertions that there never was a problem are simply propoganda that allow you to claim anyone to your right are racist. Grow up. If you want to claim the problem was overstated at least you have an opinion to support. Saying it doesn't exist just further (see first paragraph) illustrates how fringy your beliefs are.
And last, try to understand the comment. This is why we have these rules. Your desire for different rules, or belief that they are unreasonable, is beside the point.
I'm curious why you think people who comprise parole boards are catagorically all "activists who think Mumia is a political prisoner." Or, in the alternative, I'm curious why you think that other people in general think that. I'm not arguing with you, I really do just want to know why.
"...the point was to remove the discretion of the lawyers. You respond that they don't like it, as if this somehow proves something. Of course they hate it."
so...you take discretion from trained professionals who have devoted their lives to certain career paths and you give it to any idiot who can draft a voter initiative and convince some rich guy to fund a massive campaign to pass it?
that sure seems like a brilliant way to set up a comprehensive, workable criminal justice system.
by the way, how is that working out in california, right about now? last i hear, they're trying to find some way, any way to get around the dictates of the law. and if i'm not mistaken, they've already begun to release prisoners incarcerated under the "three strikes..." law, as they recognize how brutally inefficient it has been.
and i would recommend that you do a little bit of historical research to learn where the entire emphasis on pandering on criminal justice issues stems from.
for your elucidation, it really started with nixon in '68 when he first started talking about "law and order", using code words that just barely disguised the racism behind the "policy". this went hand in hand with nixon's southern strategy.
republicans pandered on the issue for decades, with lee atwater becoming the maestro of this strategy. willie horton in 1988 was probably the most vivid example of this approach and it was devastatingly effective.
but, to anyone paying attention, this is not new. and it is not news. republicans, from atwater on his deathbed to various other candid folks, have admitted the truth behind their approach over the years.
look, i can't help it if guys have tried to use race and fear of crime - and specifically, black criminals - for political advantage. that's just the reality.
what is funny is that you try to deny that history. interestingly, no one else does. at this juncture, they're trying to apologize for it. at least politicians in the mainstream.
darry9,
I didn't say the insiders were believed to be categorically all activists. I said people suspect legal system insiders will tend to be more like the groups identified than themselves.
Why? First, most people don't want to work with criminals. It's dangerous and most criminals are not pleasant people. It's much more satisfying to write computer software or teach third grade. So who takes these jobs? People who have few other choices, people who gain intangibles others don't, and people who are more comfortable around criminals than most. Activists who think criminals are victims rather than victimizers probably meet both these last criteria.
And second, because that's what they've watched happen before. When truth in sentencing was an issue (which didn't mandate sentencing) who fought it? Activists and insiders, many of whom were both.
I understand that working with criminals is dangerous, in so far as prison guards are concerned, especially in state prisons (v. federal). But parole officers? You seriously think they are in danger? Especially when most prisoners want to impress them?
"I tend to think legal system insiders will tend to be more like the groups identified than themselves."
-why would you think that the John Does of the world would think that parole officers, who hold steady jobs and support their families would resemble murderers more than them?
-Second, parole officers are generally not lawyers.
-parole officers are people who "gain intangibles most don't?" I don't understand what this means. Do you mean affirmative action cases? (because I thoroughly disagree with affirmative action in principle).
darry9,
Do I think parole officers face more dangerous circumstances than Joe or Jane insurance claim processor? Of course, any involvement with criminals increases your risk by putting you on their radar. I don't necessarily think this risk is huge. But I think you're overselling your point. First, these features don't have to be true of every position in order to cause disproportionate results. And second this doesn't address the idea that workign with criminals is seen as unpleasant by most people.
By insiders I mean people who run the system, not criminals. I'm saying the public believes the group that runs the system will tend to include more activists and grandstanders than the public at large. And since this group will have a disproportionate effect on enforcement, they don't trust them to make the decisions the public prefers.
Intangibles is not a reference to affirmative action. I'm referring to people who gain non-material rewards. A lawyer might use his time with project innocence to enhance an expected political future. An activist might feel that parole work is a contribution for social justice.
Frankie:
"so...you take discretion from trained professionals who have devoted their lives to certain career paths and you give it to any idiot who can draft a voter initiative and convince some rich guy to fund a massive campaign to pass it?"
Yes, this is exactly what ocurred. It is in fact a terrible solution, one that the public feels was forced on them by these "trained professionals" violating the public's trust.
And the rest of your screed shows why the public won't trust the fringe left on this matter. You blather on about racism this, Republicans that, but not one word about fixing the system. You have not one thing to offer. The public is never going to trust its safety to anyone as unserious as you.
mj,
Frankie said it is stupid to take discretion away from trained professionals and invest that power in ballot initiatives. You seem to criticize this observation, but then say "this is exactly what occurred." Now, riddle me this: how was depriving trained professionals of discretion a policy change "forced" upon the public BY trained professionals? Are you suggesting they were attempting to abandon their own authority?
darry9,
i think i might give up on mj.
he's not making much sense.
certainly the explicit contradiction you note is a great illustration.
then, i recite political history that even republicans acknowledge and apologize for, and he doesn't respond, but engages in an ad hominem attack, labeling it as "blather" and using the typical right-wing tactic of trying to label any criticism as "unserious".
richard nixon?
law and order?
spiro agnew?
the southern strategy?
willie horton?
lee atwater?
he has no answer to these very specific examples of the republican party pandering in offensive racist ways in order to win votes.
again, this is the history of the party over the last 40 years.
party elders have been apologizing for it over the last few years.
what is your response?
he has none.
darry9,
These "trained professionals" refused to enforce the laws as the public desired. The public was forced to find a solution that could not be subverted by them, so they used what was available.
Frankie seems to believe that the opinions of "trained professionals" are beyond reproach, but I think he'll have a tough sell on that. I wonder if he applies that principle to all industries, or if this is a tacit admission that legal system insiders run left.
It is less than optimal to use a ballot initiative, or even a more normal political process. Even people who voted for it recognize that. But they felt it was better that the alternative. Returning to the old (non)enforcement policies is not going to fly. To improve the system the insiders need to regain the trust of the public. And it seems obvious that these insiders are never going to regain the trust of anyone when they and their allies are claiming anyone concerned about public safety is "somewhat racist".
Mj,
You use the lamest of argumentative tricks, the straw man. I've never said, and never implied, that the judgments of trained professionals were beyond reproach. But you state that I have done so, presenting an easily knocked-down straw man. I've had more than my share of contentious exchanges with prosecutors and probation and parole officers and judges and I am fully aware of their foibles and the problems associated with their exercising authority.
However, I would always prefer that a human being, no matter how flawed, decide important decisions like how long someone will spend in prison. Broad formulas that are based on catchy slogans is an absolutely horrendous way to determine such matters. And the very notion that states have laws and policies based on such is mindboggling.
And gaining public trust would be much easier if politicians did not exploit racial divisions and stereotypes for their own political gain.
And again, republican politicians have admitted that they have been guilty of doing exactly that, so where is the controversy?
Or do you dispute what people like ken mehlman and lee atwater have acknowledged and admitted and sought forgiveness for?
Ok, you accuse "trained professionals" of not enforcing the laws as the public wants them. The public in this case, has two remedies. They can 1). elect a different DA when the term is up, or 2). petitioning their representatives to change the law so it is more clear or puntative or whatever you want it to be.
I don't understand your non-sequitur about how if frankie does not admit that all people with formal training in a field do not admit that their opinions are just as good as those without training it proves that the "legal insiders" are all leftists.
And more generally, why do you think all "legal insiders" are leftists? Last time I checked, we came in all flavors. Last time I checked, John Yoo and David Addington and Jay Bybee were some of the most powerful lawyers in the country, writing some of the most conservative legal opinions in the country. Don't tell me we're all leftists, that dog won't hunt montseignur.
sorry that was @mj, not frankie
darry9,
The public did have several options in the political process, and at different times and places used them all. But if you don't trust the DA candidates to follow through on their promises, an attractive option is limiting their ability to break them.
I didn't say legal insiders are all leftists, I said that they run, or tend to be, left. I noted it because the thread evolved to imply that somehow it is inconceivable that opinions of "trained professionals" are questioned. The implication seems to be that this group is completely comprised of solonic professionals and us mere mortals simply have to accept their rule. And I wonder what it is about this particular group of industry professionals that makes people believe this. For example, I suspect few people who accept this statement about the legal system would accept the same statement regarding the financial industry.
I don't want to get bogged down in the details of this argument, particularly about who should or shouldn't have discretion, the value of lawyers, etc.
But I would like to contribute one broader point. Which is that this dichotomy that people like to create between "people who care about public safety" and "liberals who just want to coddle criminals" is an utter and total canard. For example, mj, who writes above that the American people "don't trust these people [read: lawyers who work to defend criminal defendants' constitutional rights] to care enough about public safety."
People like to accuse an imagined "left wing" of "coddling criminals" at the expense of "public safety." But of course we all want to live in safe communities. And that is precisely why some people on all ends of the political spectrum have serious concerns about our current criminal justice system. The fact is that putting people in prison does not make anyone safer. Prison is criminogenic. Statistics bear this out. Once people go to prison, they become more likely to commit additional crimes. This is especially true, of course, for low-level nonviolent drug offenders who may have never been violent, but then got sent to prison where violence is learned.
Even with violent offenders, the reality is that most people who go to prison do eventually get out. And the prisons we have are basically set up to ensure that once those prisoners do get out, they will be basically unemployable, ostracized from society (e.g., can't vote in many places), often undereducated, often undertrained, etc. Hence, more likely to turn to crime, if only because they may feel they don't have anything to lose by it, and/or don't have any good options. Now, maybe you don't think people's circumstances affect their likelihood of committing crime; you think criminal behavior is 100% a choice that can be made out of free will. You are free to have that opinion, but it's simply not backed up by the statistics.
Everyone wants to live in safer communities -- we need to confront the fact that the way to do that is emphatically not to put more people in prison for longer. If you think that the answer to crime is longer and stiffer prison sentences for everyone -- then you need to honestly admit that what you care about is revenge, not safety. If you really care about safety, then you need to honestly admit that longer and stiffer prison sentences for everyone are not the solution.
I recommend that everyone read this article by William Stuntz:
https://www.weeklystandard.com/Content/Public/Articles/000/000/016/157ehmas.asp
Stuntz cannot be easily categorized using the facile terms that many in the blogosphere prefer. He's a Harvard Law professor, and an evangelical Christian -- not a typical combo. And he's hardly soft on crime. But he points out many troubling facts. I'd love to copy his whole article here if I could, but for now, here are just two statistics to mull over:
(1) "The black imprisonment rate in 2000 was roughly one-third higher than the rate at which citizens of the Soviet Union were confined to the gulag's camps in Stalin's last years (when the camps' population peaked). If America's jail population is included, the black incarceration rate is nearly double the Soviet rate of confinement circa 1950."
Stuntz argues that such high incarceration rates do not effectively deter crime -- when incarceration is that routine for a population, it loses its stigma (which is not to say it is not tragic). Now, me personally, I'd submit we also need to confront that regardless of what we may think about penology or the purposes of criminal justice, a regime that imprisons a certain discrete segment of the population at these rates has something rotten in its core on a more basic, democratic legitimacy level. But again, we don't even need to go into all of that because we can stick to the common ground of utilitarian arguments, and there, the bottom line is this: incarceration rates this high do not deter. They do not make anyone safer.
(2) "The murder rate in the United States is about the same as in 1966; the imprisonment rate is almost five times the rate in 1966. Apparently, it takes five times as much punishment to achieve the deterrent effect prison terms had more than 40 years ago."
When you actually look at the numbers, it becomes clear that massive incarceration does nothing to keep us safer, and if anything, makes our communities less safe. So to try to make this a debate about "public safety" vs. anything else is just a canard, and counterproductive.
I find it hysterical that someone trying to pose as reasonable by drawing agreement on the concern for public safety in the very same comment implies that those who don't agree with their solutions are against constitutional rights.