There is an excellent review of the major cases decided by the United States Supreme Court in the Term just ended.
Many newspapers have called attention to these major decisions, but this one in the New York Times goes into some detail and is worth reading by criminal justice students.
These cases include one on habeas corpus for those held in Guantanamo, death penalty for child rapists, right to have a gun for legal protections, and lethal injections among others.
Feel free to express your comments on any of these cases.
Sunday, June 29, 2008
Court Decisions Quote Rockers and others
Not all cases heard by the Court have the widespread interest that the death penalty for child rapists or the right to own a handgun for self-defense generated. In an article by Adam Liptak, The Chief Justice, Dylan and the Disappearing Double Negative, published in the New York Times on Sunday June 29, 2008, we learn that Chief Justice Roberts wrote the following in his dissent in a case involving telephone companies, Sprint v. APCC Services:
“The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing,” Chief Justice Roberts wrote. “ ‘When you got nothing, you got nothing to lose.’ Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).”
“The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing,” Chief Justice Roberts wrote. “ ‘When you got nothing, you got nothing to lose.’ Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).”
Bob Dylan appears to be the most cited Rocker according to a study done by Alex B. Long published in 2007 in the Washington and Lee Law Review; Long found 26 instances using a Lexis Nexis Database. The Rolling Stones, the Beatles, Simon and Garfunkel along with others all provided quotes in opinions by various courts.
In the article Liptak writes: “The correct rule on the necessity of expert testimony has been summarized by Bob Dylan: ‘You don’t need a weatherman to know which way the wind blows,’ ” a California appeals court wrote in 1981, citing “Subterranean Homesick Blues.” Eighteen other decisions have cited that lyric.
Former Chief Justice William Rehnquist was known to put lines from Gilbert and Sullivan in his opinions. In a per curiam decision, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980), "What never? Well, hardly ever!" a line from Gilbert and Sullivan appears.
The law and lawyers as well as judges are often featured in Gilbert and Sullivan and then quoted by numerous court opinions to make their point. The footnotes to an article about the Cultural Influences of Gilbert and Sullivan in Wikipedia provided the specific examples that follow.
U.S. v. Weaver, 1992 U.S. App. Lexis 14552, 27 (4th Cir. 1992): "Throughout history, the object of sentencing has been 'to let the punishment fit the crime'";
De Sole v. United States, 947 F.2d 1169, 1176 (4th Cir. 1991) ("It, therefore, is instructive to take a lesson from the law described by Gilbert and Sullivan as that of the monarch of the sea.");
Borer v. American Airlines, Inc., 19 Cal.3d 441 (1977) ("The majority raise the spectre of liability not only to the victim's spouse but also to a Gilbert and Sullivan parade of 'his sisters and his cousins, whom he reckons up by dozens'", Dissent of Justice Mosk);
Ayers v. Landow, 666 A.2d 51, 57 (D.C. 1995) (referring to the Mikado’s "disfavored 'billiard sharp'"); and Gallimore v. Children's Hosp. Med. Center, 67 Ohio St. 3d 244, 252 (1993) (limiting consortium damages to parents only, not "a Gilbert and Sullivan cavalcade of 'his sisters and his cousins... and his aunts'").
In re Stevens, 119 Cal.App.4th 1228, 15 Cal.Rptr.3d 168 (2d Dist. 2004) ("a felon's 'capacity for innocent enjoyment' is just as great as any honest man's.")
"Let the punishment fit the crime" which is quoted by the public in response to a number of questions comes from the Gilbert and Sullivan show The Mikado.
Many years ago Justice Blackmun writing the majority opinion in Flood v. Kuhn (1972) included all the words to the poem Casey at the Bat in footnote.
Lyricists and poets alike tend to get a message across in a pithy manner. Unfortunately all too many court decisions, because of the need to weave the beliefs of all who sign an opinion and provide the legal reasoning behind the decision, tend to be quite lengthy. Thus these insertions make the decisions more enjoyable to read and more importantly underline the point that is being made.
Friday, June 27, 2008
What the United States Supreme Court 2nd Amendment Decision Says and Doesn't Say
Addressing for the first time in its history the issue of a citizen's right to own a gun, the Court held that the 2nd Amendment does in fact include the right to own a gun for self-protection. The Court held that this right is unconnected to militia service. The District of Columbia has had a law for 32 years which prohibited unlicensed guns and required licensed guns to be disassembled or unloaded unless in a place of business or being used for recreational purposes.
It is interesting to note that the ban on guns has not resulted in a low crime rate in D.C. The Court did note that self-defense would be impossible in most situations if one had to first reassemble the gun and then load it. The majority opinion, written by Justice Scalia, does explicitly state that the right to own a gun is not an unlimited one.
A major difference between the majority of the court, it was another 5-4 decision, and the dissenters revolves around the prefatory clause (A well regulated militia, being necessary for the security of a free State). The majority holds that the right to keep and bear arms is a personal right and does not require one's militia membership. The dissent believe that the prefatory clause, preamble if you will, is the controlling clause. Disregarding the disagreement in interpretation between the members of the Court, majority rules and becomes the precedent: citizens have a constitutional right to keep and bear arms. However one cannot overlook the fact that later Supreme Courts could decide that this case was wrongly decided. Although with few exceptions the Court tends not to overturn its own decisions, it does have the ability to do so. Brown v Board of Education reversed the conclusions of Plessy v. Ferguson.
BUT since the right is not unlimited, less onerous restrictions might well be upheld as constitutional. And it is important that in a footnote, Justice Scalia states that incorporation was not an issue before the Court. Incorporation is the term used when the Supreme Court declares that an Amendment's protection extends to the state as well as the federal criminal justice system. Therefore this ruling only applies in D.C. because of its location outside of any state's jurisdiction.
Since the National Rifle Association has announced that it plans to challenge similar handgun laws across the country, the question of incorporation will be addressed, most probably in the next opinion regarding the rights of the 2nd Amendment.
Do you think that citizens have a right to own handguns? What restrictions should be placed on ownership?
It is interesting to note that the ban on guns has not resulted in a low crime rate in D.C. The Court did note that self-defense would be impossible in most situations if one had to first reassemble the gun and then load it. The majority opinion, written by Justice Scalia, does explicitly state that the right to own a gun is not an unlimited one.
A major difference between the majority of the court, it was another 5-4 decision, and the dissenters revolves around the prefatory clause (A well regulated militia, being necessary for the security of a free State). The majority holds that the right to keep and bear arms is a personal right and does not require one's militia membership. The dissent believe that the prefatory clause, preamble if you will, is the controlling clause. Disregarding the disagreement in interpretation between the members of the Court, majority rules and becomes the precedent: citizens have a constitutional right to keep and bear arms. However one cannot overlook the fact that later Supreme Courts could decide that this case was wrongly decided. Although with few exceptions the Court tends not to overturn its own decisions, it does have the ability to do so. Brown v Board of Education reversed the conclusions of Plessy v. Ferguson.
BUT since the right is not unlimited, less onerous restrictions might well be upheld as constitutional. And it is important that in a footnote, Justice Scalia states that incorporation was not an issue before the Court. Incorporation is the term used when the Supreme Court declares that an Amendment's protection extends to the state as well as the federal criminal justice system. Therefore this ruling only applies in D.C. because of its location outside of any state's jurisdiction.
Since the National Rifle Association has announced that it plans to challenge similar handgun laws across the country, the question of incorporation will be addressed, most probably in the next opinion regarding the rights of the 2nd Amendment.
Do you think that citizens have a right to own handguns? What restrictions should be placed on ownership?
Wednesday, June 25, 2008
No Executions for Child Rapists
Louisiana law made raping a child a death penalty offense. Today, June 25th, 2008, the United States Supreme Court ruled in a 5-4 decision that putting child rapists to death, when the victim lived and there was no intent to kill the victim, violated the 8th Amendment. The Louisiana legislature had made the rape of a child under the age of 13 a capital offense.
In addition to the holding itself, attention should be paid to the fact that the decision is so close. It is to be expected that in the next few years vacancies will appear and new Supreme Court Justices will have to be nominated by the President and voted on by the Senate. Since only one Justice is responsible for the final outcome when a decision is 5-4, a change in the Court's membership can change the holdings of the future.
The opinion's statement that death sentences should be reserved 'for crimes that take the life of the victim' will apply, the court said, to crimes against individuals - thus leaving intact, for example, a possible death sentence for treason.
Justice Alito's dissent questioned the assertion by the majority that there is a public consensus against the death penalty for child rapists. But of even more importance, he discusses the fact that courts around the country, and probably state legislatures as well, have been relying on dicta from Coker v. Georgia to conclude that the Court in Coker held that unless a victim died, the death penalty was unconstitutional. Thus he concludes that the erroneous reliance on dicta has skewed the results when the majority looked at the number of legislatures who have passed such laws. One cannot help but wonder if opinions were pithy and concentrated on the legal rational of the holding alone, dicta would be a bit more obvious and less likely to be considered by other courts trying to decide on the basis of precedent.
Texas passed a similar statute in 2007 that made child rapists death-penalty eligible. Since this law is now unconstitutional, an amended law might list this crime and some others as "life without the possibility of parole" eligible.
Should the Texas legislature list crimes that while not eligible for a death penalty could be eligible for life without the possibility of parole? What crimes would you include?
In addition to the holding itself, attention should be paid to the fact that the decision is so close. It is to be expected that in the next few years vacancies will appear and new Supreme Court Justices will have to be nominated by the President and voted on by the Senate. Since only one Justice is responsible for the final outcome when a decision is 5-4, a change in the Court's membership can change the holdings of the future.
The opinion's statement that death sentences should be reserved 'for crimes that take the life of the victim' will apply, the court said, to crimes against individuals - thus leaving intact, for example, a possible death sentence for treason.
Justice Alito's dissent questioned the assertion by the majority that there is a public consensus against the death penalty for child rapists. But of even more importance, he discusses the fact that courts around the country, and probably state legislatures as well, have been relying on dicta from Coker v. Georgia to conclude that the Court in Coker held that unless a victim died, the death penalty was unconstitutional. Thus he concludes that the erroneous reliance on dicta has skewed the results when the majority looked at the number of legislatures who have passed such laws. One cannot help but wonder if opinions were pithy and concentrated on the legal rational of the holding alone, dicta would be a bit more obvious and less likely to be considered by other courts trying to decide on the basis of precedent.
Texas passed a similar statute in 2007 that made child rapists death-penalty eligible. Since this law is now unconstitutional, an amended law might list this crime and some others as "life without the possibility of parole" eligible.
Should the Texas legislature list crimes that while not eligible for a death penalty could be eligible for life without the possibility of parole? What crimes would you include?
Tuesday, June 24, 2008
When is a Lawyer Required
The United States Supreme Court held that once an individual is brought before a magistrate at an initial appearance, the right to court-appointed counsel attaches. "A criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel."
This ruling has an impact upon police interrogations since all questions must stop once an attorney is requested and not resume except in the presence of the attorney.
Since past Supreme Court holdings have required that an individual clearly ask for an attorney, no "maybe I need an attorney" or other unequivocal statements will do, the question of whether magistrates now will ask if the person wants appointed counsel as part of the initial appearance remains unanswered.
Miranda Warnings include the proviso that you have the right to have an attorney present and if you cannot afford one, the state will provide one for you. The warnings require that the individual be asked if he/she understand the rights. They do not require police to ask if a person wants an attorney. Now the Court says the right to an attorney attaches at the first appearance before a magistrate.
Do you think that a magistrate should be required to specifically ask the suspect if an attorney is desired?
This ruling has an impact upon police interrogations since all questions must stop once an attorney is requested and not resume except in the presence of the attorney.
Since past Supreme Court holdings have required that an individual clearly ask for an attorney, no "maybe I need an attorney" or other unequivocal statements will do, the question of whether magistrates now will ask if the person wants appointed counsel as part of the initial appearance remains unanswered.
Miranda Warnings include the proviso that you have the right to have an attorney present and if you cannot afford one, the state will provide one for you. The warnings require that the individual be asked if he/she understand the rights. They do not require police to ask if a person wants an attorney. Now the Court says the right to an attorney attaches at the first appearance before a magistrate.
Do you think that a magistrate should be required to specifically ask the suspect if an attorney is desired?
Monday, June 23, 2008
Juveniles in Kansas have right to jury trial
On Friday, June 20, 2008, the Kansas Supreme Court ruled 6-1 that juveniles have a constitutional right to trial by jury when prosecuted. The Court said that as lawmakers have cracked down on juvenile crime differences between the juvenile and adult system have narrowed.
It is important to note that Texas and the majority of states do NOT offer a jury trial as an option to juveniles, but Kansas did. Thus the case resolved around the issue of there being a provision for a juvenile jury trial but judges were not granting requests for the jury trial.
The juvenile justice system was set up a century ago to offer a less formal atmosphere and to seek ways of rehabilitation. Even the language used in the juvenile systems of most states is totally different from that of the adult system.
The recent trend has been to certify serious juvenile offenders as adults and transfer them to the adult criminal justice system. Each state that does this, imposes a minimum age at which a juvenile may be certified.
In 1995 Missouri eliminated a minimum age for juveniles to be certified as adults when the crimes include rape, robbery, assault, or murder. Florida also has tried and sentenced as adults some very young people.
Do you think that juveniles under the age of 16 should be certified as adults for very serious offenses? What would you set as the minimum age of certification?
It is important to note that Texas and the majority of states do NOT offer a jury trial as an option to juveniles, but Kansas did. Thus the case resolved around the issue of there being a provision for a juvenile jury trial but judges were not granting requests for the jury trial.
The juvenile justice system was set up a century ago to offer a less formal atmosphere and to seek ways of rehabilitation. Even the language used in the juvenile systems of most states is totally different from that of the adult system.
The recent trend has been to certify serious juvenile offenders as adults and transfer them to the adult criminal justice system. Each state that does this, imposes a minimum age at which a juvenile may be certified.
In 1995 Missouri eliminated a minimum age for juveniles to be certified as adults when the crimes include rape, robbery, assault, or murder. Florida also has tried and sentenced as adults some very young people.
Do you think that juveniles under the age of 16 should be certified as adults for very serious offenses? What would you set as the minimum age of certification?
Friday, June 20, 2008
Results of Curfews? San Diego found crime increased
The full story is at http://sdcitybeat.com/cms/story/detail/necessary_evil/7030/
San Diego instituted a strictly enforced 10 pm to 6 am curfew eleven years ago. What happened may be a cultural change and is bound to be studied by criminologists. The article does not provide information about whether gangs were as prevalent when the curfew began. It does state that gang activities had increased when the curfew was first instituted.
The article reveals that this year gang-related crimes are up 23% and gang-related homicides increased 61%. A study done in California by the Center on Juvenile and Criminal Justice nine years ago found that curfews had little effect on juvenile crime rates. They found that most juvenile crime took place between 3 and 6 pm. What is not revealed is whether the youth crime they refer to is property crime or violent crime.
If the curfew is not working, one wonders why it remains and takes up so much police time.
Left unreported is whether teen-age driving accidents had decreased since more of those occur in the late night hours.
Have you any thoughts on other alternatives to reduce youth crime?
San Diego instituted a strictly enforced 10 pm to 6 am curfew eleven years ago. What happened may be a cultural change and is bound to be studied by criminologists. The article does not provide information about whether gangs were as prevalent when the curfew began. It does state that gang activities had increased when the curfew was first instituted.
The article reveals that this year gang-related crimes are up 23% and gang-related homicides increased 61%. A study done in California by the Center on Juvenile and Criminal Justice nine years ago found that curfews had little effect on juvenile crime rates. They found that most juvenile crime took place between 3 and 6 pm. What is not revealed is whether the youth crime they refer to is property crime or violent crime.
If the curfew is not working, one wonders why it remains and takes up so much police time.
Left unreported is whether teen-age driving accidents had decreased since more of those occur in the late night hours.
Have you any thoughts on other alternatives to reduce youth crime?
Thursday, June 19, 2008
Right of Self-Representation
In 1975 the United States Supreme Court ruled that an individual on trial for a crime had the right to act as his/her own attorney, so long as the choice was made with knowledge of the potential consequences.
The United States Supreme Court in Indiana v. Edwards (07-208) upheld that right BUT allows the states to have one standard of mentally competency for putting a mentally impaired person on trial, and a higher standard that such a person would have to meet in order to be allowed self-representation. Ahmad Edwards had been found competent to be put on trial, but not to represent himself.
What is unclear, though, is what the higher standard is for representing one’s self when mental competency is at issue.
The decision in Edwards was 7-2 and even the dissenters, Justices Scalia and Thomas, recognized that the Faretta right to self-representation is in no danger of reversal in the immediate future, if ever.
Do you think this right should apply in capital cases where to err is to possibly lead to death?
The United States Supreme Court in Indiana v. Edwards (07-208) upheld that right BUT allows the states to have one standard of mentally competency for putting a mentally impaired person on trial, and a higher standard that such a person would have to meet in order to be allowed self-representation. Ahmad Edwards had been found competent to be put on trial, but not to represent himself.
What is unclear, though, is what the higher standard is for representing one’s self when mental competency is at issue.
The decision in Edwards was 7-2 and even the dissenters, Justices Scalia and Thomas, recognized that the Faretta right to self-representation is in no danger of reversal in the immediate future, if ever.
Do you think this right should apply in capital cases where to err is to possibly lead to death?
Tuesday, June 17, 2008
If it is not repealed, it is good law
A few years back a woman in Connecticut had the police arrest and jail her husband for adultery. The law dating back a century had never been repealed and the police acted under it.
In today's New York Times, http:://www.nytimes.com/2008/06/17/us/jury.html?_r=18oref=slogin, the headline read Grand Juries Become
Latest Abortion Battlefield.
Whether you are pro-life or pro-choice is immaterial to the point of this blog. Congress,
state legislatures, counties, and municipalities pass hundreds of laws during each session.
The problem is that rarely does anyone go back and look over the laws on the books
to see if they still represent current beliefs. Laws should change as society changes. The obvious example is Prohibition which became part of the United States Constitution until it was repealed by another amendment.
In Texas we had a community that until a few years ago prohibited dancing: there could be no senior prom in that town. It might prove informative to contact your city council and ask if there are any laws that date back more than 3 decades (or whatever time frame suits you) and look them over.
Remember that any law still on the books can be used to prosecute you. Does it matter that the case will more than likely be thrown out of court? NO because you might have had to spend a night in lockup and spend money to get things resolved. Since most of the archaic laws are at the municipal or county level, getting them changed should not be all that difficult.
Finding them might be more of a challenge.
There are web sites that list silly laws in Texas, Maryland and other places. Using ask.com with silly laws as the query turned up some good chuckles: law in Georgia that prohibits folks from saying "Oh boy" in public -- I kid you not.
Respect for the law is important.
In today's New York Times, http:://www.nytimes.com/2008/06/17/us/jury.html?_r=18oref=slogin, the headline read Grand Juries Become
Latest Abortion Battlefield.
Whether you are pro-life or pro-choice is immaterial to the point of this blog. Congress,
state legislatures, counties, and municipalities pass hundreds of laws during each session.
The problem is that rarely does anyone go back and look over the laws on the books
to see if they still represent current beliefs. Laws should change as society changes. The obvious example is Prohibition which became part of the United States Constitution until it was repealed by another amendment.
In Texas we had a community that until a few years ago prohibited dancing: there could be no senior prom in that town. It might prove informative to contact your city council and ask if there are any laws that date back more than 3 decades (or whatever time frame suits you) and look them over.
Remember that any law still on the books can be used to prosecute you. Does it matter that the case will more than likely be thrown out of court? NO because you might have had to spend a night in lockup and spend money to get things resolved. Since most of the archaic laws are at the municipal or county level, getting them changed should not be all that difficult.
Finding them might be more of a challenge.
There are web sites that list silly laws in Texas, Maryland and other places. Using ask.com with silly laws as the query turned up some good chuckles: law in Georgia that prohibits folks from saying "Oh boy" in public -- I kid you not.
Respect for the law is important.
Thursday, June 12, 2008
Rule of Law Triumphs
The United States Supreme Court ruled that those held in Guantanamo have the right to a petition for a writ of habeas corpus. At first blush one can raise an eyebrow and ask why would we allow potential terrorists to question the legality of their incarceration. The answer is simple: Our Constitution grants the right of habeas corpus to all. But whether those held outside of the United States, albeit by the US Military, fall under the provisions of this constitutional right is the point on which the Court does not agree.
A basic question that the Court grapples with is whether Congress in fashioning a means for those held in Guantanamo to challenge their detention is adequate and meets the need for due process. Five justices say it is not sufficient and Chief Justice Roberts in his dissent disagrees with this conclusion.
By extending the right to those whom our government says wish to destroy us, we our protecting ourselves as well. One of the most precious rights granted under the Magna Carta was the right to have the king or anyone else who held a person in custody be required to prove to an impartial judge that the custody was legal. The court must be convinced that there is probable cause to believe the person has violated the law. But does this right apply to those not held on United States soil in American prisons?
The decision in Boumediene v. Bush was 5-4. Chief Justice Roberts along with Justices Scalia, Alito, and Thomas dissented. Because of the complexities involved, one needs to read not just the majority opinion but the dissents by Chief Justice Roberts and by Justice Scalia as well.
You can read the entire opinion and the dissents here: http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf
A basic question that the Court grapples with is whether Congress in fashioning a means for those held in Guantanamo to challenge their detention is adequate and meets the need for due process. Five justices say it is not sufficient and Chief Justice Roberts in his dissent disagrees with this conclusion.
By extending the right to those whom our government says wish to destroy us, we our protecting ourselves as well. One of the most precious rights granted under the Magna Carta was the right to have the king or anyone else who held a person in custody be required to prove to an impartial judge that the custody was legal. The court must be convinced that there is probable cause to believe the person has violated the law. But does this right apply to those not held on United States soil in American prisons?
The decision in Boumediene v. Bush was 5-4. Chief Justice Roberts along with Justices Scalia, Alito, and Thomas dissented. Because of the complexities involved, one needs to read not just the majority opinion but the dissents by Chief Justice Roberts and by Justice Scalia as well.
You can read the entire opinion and the dissents here: http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf
Wednesday, June 11, 2008
Accountability for prisons
The Texas prison system has quadrupled in the past two decades according to Marc A. Levin, Director of the Center for Effective Justice at the Texas Public Policy Foundation based in Austin, who wrote a column that appeared in the Fort Worth Star Telegram on Tuesday, June 1, 2008.
He points out that obviously if someone is incarcerated, that person cannot commit another crime, outside of the prison. But 99% of all prisoners will one day rejoin society. Texas has a three-year revocation of parole and probation of about 30%.
There is general agreement among Western societies that reducing recidivism is crucial if we are to control future incarceration costs and the costs to humans when crime is committed. England's Conservative Party published a 111-page report called Prisons with a Purpose: Our Sentencing and Rehabilitation Revolution to Break the Cycle of Crime.
One of the points of the report is a call for accountability for the prisons. There would be a level where basic costs are covered. But a second level would be based on performance, primarily measured by recidivism within several years of release. The funding accountability extend to parole and probation offices as well. They suggest a system where the parole and probation and a specific prison are joined under the supervision of one individual. But this may be quite impractical when many prisoners live in counties far from the location of the prison.
There are many other obvious problems that can be foreseen. But the idea that a prison as well as probation and parole offices would gain more funding by providing more education and other rehabilitation programs for prisoners and those newly released holds a promise of possible success. Education has been shown to be a big factor in recidivism rates. But of equal importance is the availability of gainful employment for released felons. Business would need to get behind such a program if it is to have even the possibility of success.
Another element is a revision of what constitutes behavior that mandates revocation of parole or probation. Many elements that are now found in drug courts could be adapted. We would need to have much smaller caseloads for probation and parole workers so that there was constant supervision and, equally important, more support for the newly released.
Obviously this is not the only possible way to reduce recidivism, but it is well worth consideration. As with all things that originate in another nation, there are adaptations that must be made to come into line with our constitution, our society, and our beliefs.
You can read the entire article here: http://www.texaspolicy.com/commentaries_single.php?report_id=1961.
Do you think it has any merit?
He points out that obviously if someone is incarcerated, that person cannot commit another crime, outside of the prison. But 99% of all prisoners will one day rejoin society. Texas has a three-year revocation of parole and probation of about 30%.
There is general agreement among Western societies that reducing recidivism is crucial if we are to control future incarceration costs and the costs to humans when crime is committed. England's Conservative Party published a 111-page report called Prisons with a Purpose: Our Sentencing and Rehabilitation Revolution to Break the Cycle of Crime.
One of the points of the report is a call for accountability for the prisons. There would be a level where basic costs are covered. But a second level would be based on performance, primarily measured by recidivism within several years of release. The funding accountability extend to parole and probation offices as well. They suggest a system where the parole and probation and a specific prison are joined under the supervision of one individual. But this may be quite impractical when many prisoners live in counties far from the location of the prison.
There are many other obvious problems that can be foreseen. But the idea that a prison as well as probation and parole offices would gain more funding by providing more education and other rehabilitation programs for prisoners and those newly released holds a promise of possible success. Education has been shown to be a big factor in recidivism rates. But of equal importance is the availability of gainful employment for released felons. Business would need to get behind such a program if it is to have even the possibility of success.
Another element is a revision of what constitutes behavior that mandates revocation of parole or probation. Many elements that are now found in drug courts could be adapted. We would need to have much smaller caseloads for probation and parole workers so that there was constant supervision and, equally important, more support for the newly released.
Obviously this is not the only possible way to reduce recidivism, but it is well worth consideration. As with all things that originate in another nation, there are adaptations that must be made to come into line with our constitution, our society, and our beliefs.
You can read the entire article here: http://www.texaspolicy.com/commentaries_single.php?report_id=1961.
Do you think it has any merit?
Monday, June 9, 2008
Accusers Not Allowed to Mention Rape or Sexual Assault
A Lincoln, Nebraska judge prohibited the victim from using the word "rape" or "sexual assault" in front of the jury when she testified. She was also prohibited from describing herself as a victim or using the term assailant when describing the man she claimed had raped her.
The judge said that the defendant's presumption of innocence and right to a fair trial trumped the "victim's" right of free speech. In Jackson County Missouri a judge issued a similar order in another trial.
Ms. Bowen who appeared in the Nebraska case as a witness is appealing to the United States Supreme Court on grounds that her rights were violated.
How do we balance the right of a defendant to a fair trial against the victim's right to describe what happened to her using her own words? Why do these restrictions only appear in cases of alleged sexual assault?
Are we going to far when we claim that the right of an accused trumps the right of an accuser to state what happened using common easily understood terms?
The judge said that the defendant's presumption of innocence and right to a fair trial trumped the "victim's" right of free speech. In Jackson County Missouri a judge issued a similar order in another trial.
Ms. Bowen who appeared in the Nebraska case as a witness is appealing to the United States Supreme Court on grounds that her rights were violated.
How do we balance the right of a defendant to a fair trial against the victim's right to describe what happened to her using her own words? Why do these restrictions only appear in cases of alleged sexual assault?
Are we going to far when we claim that the right of an accused trumps the right of an accuser to state what happened using common easily understood terms?
Sunday, June 8, 2008
Which one makes sense to you?
The Fort Worth Star Telegram today reported that a 17-year old student who phoned in a threat that he would fire upon students at the rival high school was sentenced to 7 years in prison. He had nothing in his home that could be considered a weapon. He claimed it was a prank call and friends had goaded him into doing it.
In Vermont teens broke into the home of the poet Robert Frost and were sentenced to read his poetry.
There is no doubt that threatening harm to others is egregious behavior and worthy of severe punishment, but seven years in prison seems excessive. When this young person gets out, he will forever be stigmatized as a felon and probably face a difficult road trying to get a job. His prison experience will most probably have long term psychological and emotional scars. Will he become a greater threat to society after his seven years of exposure to hardened criminals?
Was justice served in either situation?
In Vermont teens broke into the home of the poet Robert Frost and were sentenced to read his poetry.
There is no doubt that threatening harm to others is egregious behavior and worthy of severe punishment, but seven years in prison seems excessive. When this young person gets out, he will forever be stigmatized as a felon and probably face a difficult road trying to get a job. His prison experience will most probably have long term psychological and emotional scars. Will he become a greater threat to society after his seven years of exposure to hardened criminals?
Was justice served in either situation?
Saturday, June 7, 2008
Crooked Lawyers
Today's NY Times had an article about the sentencing of two lawyers who were found guilty of kickback schemes involving using the same people as lead plaintiffs in multiple suits. It raised the question in my mind about whether the sentences given made sense in terms of justice.
I certainly believe that these two deserve to serve some prison time, but shouldn't they have to repay society with mandated community service that extends for a number of years? Since they will lose their license to practice, advising those in need would not be an option. But
working each day in a kitchen feeding the homeless might be a possibility.
The white collar criminal's actions usually are exceedingly costly to those bilked or to investors who stand to lose all they have worked for -- think Enron. Time to be served at minimum security facilities should only be part of the sentence given.
Crime is an action prohibited by the law because it is injurious to society. Society should therefore receive payment in the form of community service. Housing a prisoner is costly and short sentences deprive the individual of freedom and send the message that what was done is being punished.
How would you have sentenced these two? More time in prison? Less time? Community service? It is difficult to find the right punishment when the victim is not a visible individual but a group of investors or a corporation. But we need to always ask Is this Justice? and for whom?
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