Category Archives: Criminal justice

Monday’s Mtg: What is the purpose of our criminal justice system?

Criminal justice reform stays perpetually under the Media radar, but not CivCon’s. We have debated juvenile justice, the death penalty, mass incarceration, marijuana legalization, and other topics. This stuff can get complicated and it is not my area, so I usually like to tackle it one issue area at a time.

But, Linda had an interesting idea: Go back to first principles. What should our criminal justice system be trying to do? Is the goal punishment, vengeance, public safety, rehabilitation, or something else? Who sets those goals and how do we know which purposes are the priority?

The Trump Administration sure acts like it knows. And you’ll applaud if your idea of reform is to reverse Obama-era reforms that made the system a little less punitive. As promised, law and order is back. Attorney General Jeff Sessions has expanded use of mandatory minimum sentences and local police departments’ asset forfeiture powers. He probably will refuse to enforce the many consent decrees that the Obama DOJ negotiated city-by-city to clean up systematic police mismanagement and abuses. There’s more, and more coming. See the links.

Liberal reforms still have momentum, however, because a fragile but bipartisan consensus has emerged at the state/local levels that the current mass incarceration-producing system needs a big rethink.  It is unsustainable financially, politically, and morally.  It probably has passed the point of net marginal benefit (to society, individuals) and it is no longer necessary as crime rates have dropped.

So, despite events in Washington, D.C., Linda’s question fits the times. Specifically, Linda asks whether the true purpose of America’s criminal justice system is:

  1. Punishment,
  2. Retribution, or
  3. Rehabilitation.

To those goals I might add:

4. Incapacitation (warehousing so they can’t commit more crimes),
5. Deterrence,
6. Restoration (reconciling with their victims and communities).

We also can debate more controversial notions about The System’s real intentions, such as whether it is a deliberate system of racial control and/or increasingly just a big stream of cash to be privatized for a profit motive. I have other theories that I will raise. This is a big topic.  But, how can we judge the need for criminal justice reform without knowing what the current system is trying to do?

DISCUSSION QUESTIONS –

  1. In whose eyes? Who sets the purposes of justice? Legislatures/courts? Bureaucrats? The police? Experts? The public (which public)?
  2. Motives/Incentives: What motivates each of the above actors? Different interests/preferences or different biases?
  3. The System – Purposes: Which ones matter overall the most and how do you know this?
  • Punishment
  • Vengeance
  • Rehabilitation.
  • Incapacitation.
  • Deterrence.
  • The precautionary principle or the inertia of decision accretion. Important concepts!
  • Others: Racism, fear, profit, etc.
  • JUSTICE? What does that mean?

    4.  The System – Evolution: How have purposes evolved since 1980? Why?
5. Future: Which way will reform go? How can your preferred direction be realized?

OPTIONAL BACKGROUND READING – 

Purposes

Trump’s Reforms –

Stuff you may not know –

NEXT WEEK: Is Africa’s future a bright one?

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Monday’s Mtg: Why is American culture so violent?

The United States is one of the most violent countries in the developed world. For example, here is how we compare with other OECD countries in deaths rates from assaults.

assault-deaths-oecd-ts-all-new-20131

[Source: OECD See here for identities of the other countries.]

Wow.  And it it’s not just homicide and it’s not just crime. Just thinking out loud I suppose we could identify four kinds of societal violence:

  1. Domestic violence (home/family);
  2. Public violence (crime, racial/sectarian/communal strife);
  3. State violence (repression, war/pseudo-war, criminal justice system); and
  4. Recreational violence, both simulated (TV/movies/gaming) and real (violent sports, hunting, gun hobbyists).

I haven’t looked up whether we lead in all four of these. But, we certainly do on #2, and maybe on #3 and #4. Of course, many poor/non-democratic nations have much higher levels of violence us, and much of our war fighting is as head of the Western alliance system. Still, the American people and its institutions are really, really violence-prone.

For this meeting I thought we could tackle the very unnerving idea that the main cause is cultural. Is there something, er, exceptional in American culture that makes us this way? The 300 million guns? The high poverty rates? Racism and segregation? Mass incarceration? Hyper-individualism?  A Wild West mentality or Southern culture (the South is by far our most violent region)?  Do conservative explanations hold any water, like declining religiosity/respect for moral authority or self-destructive “culture of poverty” values?  Violent entertainment?   Drugs?  You get the complexity idea.

Also, has a high tolerance for violence always been a part of our society, or has something changed recently? One of the links below is about the growing paranoia of U.S. gun culture.  Also, we just elected a president at the very least despite of – or more likely IMO – because of the way he reveled in violent rhetoric and promises to inflict actual violence. His message of an “American carnage” terrorized by violent crime and foreign exploitation and his unveiled threats of vengeance against foreign and domestic enemies deeply resonated with tens of millions of Americans. What does that alone say about our culture’s normalization of violence, or, perhaps more benignly, about voters’ beliefs that the violence is out of control?

Here are some different points of view on whether and why American culture is distinctively and excessively violent.

SUGGESTED BACKGROUND READING –

NEXT WEEK: Who runs San Diego – and for whose benefit?

Monday’s Mtg: The Elderly Prisoner Problem

Linda, who’s a criminal defense attorney in private practice, suggested this topic. Since 1995, the number of U.S. prison inmates over age 55 has roughly quadrupled. They now comprise one-sixth of the entire U.S. prison population.

Why so many aging prisoners?  One cause is the sheer size of violent crime wave that roiled the United States from the late 1960s to the early 1990s. Another is that the country is aging in general, including those that commit serious crimes. But most notoriously to blame are all of those harsh sentencing laws passed by state legislatures and Congress in response to the crime wave and the War on Some People That Use Certain Drugs. Civilized Conversation has discussed both mandatory minimum sentences and racism in sentencing on separate occasions.

Having so many aging prisoners is a problem for a lot of reasons. As one of the links below says, older prisoners “require special attention in prison, as they often suffer from chronic diseases, including diabetes, heart failure, cognitive impairment, and liver disease, as well as age related disabilities. They are also more vulnerable to victimization in prison.” Just providing their health care costs a fortune.  Many prisons have expensive geriatric wards. Nearly 80% of all deaths in prison are older (55+) prisoners.

Recently, the Obama Administration and some state governments – including California’s – have tried to devise programs to speed compassionate release for the least dangerous elderly prisoners whose further imprisonment makes little sense. This has proven harder than you might think, both administratively and politically. I imagine that the Trump Administration will end all federal efforts and that bipartisan criminal justice reform of any kind is dead. But, who knows?

Below are some rather duh-level discussion questions and a few straightforward readings on the elderly prisoner problem and on mass incarceration. On Monday I will skip my usual opening presentation, except to briefly summarize the issue for any new members that might not have read the background materials.

Linda, with her many years of experience as a defense attorney, will then have the floor.

DISCUSSION QUESTIONS –

  1. How big is this problem and what makes it a problem?
  2. What caused it? Whose “fault” is it? Was anybody thinking of this eventuality 30 or 20 or 10 years ago?
  3. Solutions:  What’s being tried, including by the USG and in California?
    How are those going? If not well, why, and what else should be done?
  4. Mass incarceration: Is the elderly prisoner problem another one of the consequences of America’s disastrous mass incarceration experiment? Or, is it a sad but inevitable consequence of our vast but in-the-past crime wave?
  5. CJ reform: Is there any hope for federal criminal justice reform now that Trump is president and the GOP controls USG?

SUGGESTED BACKGROUND READING –  

NEXT WEEK:  White male privilege – How real? How important?

Prop. 64: Some arguments opposing it – Two good articles.

I don’t have time this week to do separate posts on any of this year’s gazillion ballot propositions.  So, I’ll just link to a few good articles I come across that give info/perspectives you might not get otherwise.

First up, two that oppose Proposition 64, the legalize marijuana initiative.  I strongly urge you to read the first one if you are considering voting for 64.

  1. One of the country’s foremost experts on marijuana policy decries 64 as “promoting cannabis use disorder in CA.”
  2. A group makes what it says are “14 progressive arguments against 64”  It’s long and a few of the arguments seem weak.  But note arguments 3, 4, 6, and 13.

Monday’s Mtg: Will America’s Death Penalty Fade Away? (inc. Props. 62 and 66)

On November 8, Californians may abolish the state’s death penalty. Proposition 62 would ban capital punishment outright, including retroactively by converting all 746 prisoners on death row to life in prison without the possibility of parole. If Prop. 62 passes, we would become the 21th state to ban capital punishment outright. Four other states have governor-issued moratoria on executions.

But, it’s not a done deal in CA. I have not checked how 62 is polling yet.  But, a similar proposition failed in 2012, although by just a 52-48 margin. Also, death penalty proponents thought of a clever tactic this time around. They qualified a rival proposition, Prop. 66, to address the worst procedural problems in our state’s death penalty process. By increasing the number of defense lawyers eligible to represent death row inmates and reducing the number of permissible appeals to help speed up the decades-long (and thus arguably cruel and unusual) process, Prop. 66’s backers hope to split the queasy-about-it-all vote and stop repeal.

How big a deal would death penalty abolition be in California? Yeah, it’s the Left Coast. But, some serious people are starting to argue that the USA is near a tipping point on the death penalty. The number of U.S. executions has been declining for years (only 28 in 2015). Botched ones keep making big news. The 2016 national Democratic Party platform called for outright abolition for the first time. Nebraska just became the first red state in modern times to end the death penalty. One major recent poll showed nationwide public support for the death penalty has fallen below 50% for the first time.

On the other hand, 51% does not magically change policy (okay, except on the ballot in CA). I’ve read that the Supreme Court has never had more than two justices willing to declare that capital punishment inherently violates the 8th Amendment’s cruel and unusual standard. Absent such a ruling, abolition will remain a state-by-state issue, guaranteeing the death penalty’s survival for a long, long time, at least in deep red states.

So, what will happen? Here are some questions we might want to get into on Monday evening, plus some background readings that focus on the chances of abolition. (We did a meeting on whether capital punishment should be abolished in 2014.)

DISCUSSION QUESTIONS –

  1. Props: Discuss merits of Propositions 62 and 66.
  2. Arguments: Why do people support death penalty (e.g., vengeance, deterrence, religious belief, inertia)?   Why oppose it (morality/religious, cruel/unusual, racial disparity, cost…)?  Is there a difference between the reasons people cite and their real reasons? What would it take to change people’s minds? Your mind?
  3. Public & politicians: Why has public opinion changed? Will it keep moving against the death penalty? What might it take to reverse or accelerate that trend? What incentives do lawmakers have to take risks versus avoid this issue?
  4. Courts: Will SCOTUS ever ban the death penalty outright? On what basis? Or, will it keep slowly restricting its use (minors, intellectually-disabled, murders only, etc.)?
  5. Alternatives: Can the “machinery of death” (Justice Blackman’s phrase) ever be reformed enough to eliminate its inequities? Regardless, would either side ever be satisfied?

SUGGESTED BACKGROUND READING –  

Next Week (Oct 24): The other 15 ballot propositions, or maybe we’ll just read War and Peace instead.

Monday’s Mtg: Are There Better Ways to “Police the Police?”

This group’s ability to time its topics so well with breaking events is starting to scare me. We’ve discussed issues related to police use of violence several times recently, including in September 2014 on the events surrounding the death of Michael Brown in Ferguson, Missouri. But, there have been some big developments in the field just in the past few days.

Today (Friday 6/3), the Chicago city government released previously undisclosed information on 101 controversial instances of officer-involved shootings and violence, including 68 dash/body cam videos. This was just the latest effort to respond to public outrage over that city’s police department’s use of force. A mayoral task force recently condemned the CPD’s “code of silence” and “institutionalized racism.” Public protests are ongoing and the USDOJ is investigating the CPD as it has many other municipal police departments. Here in San Diego, the SDPD just recently released videos of several controversial use of force.

More broadly, police use of force and racial bias have been on the front burner nationally for 3+ years now, and different types of reforms have been tried in at least some of the USA’s 18,000 (!) law enforcement agencies. Things like increased use of body/dashboard cams, revamped officer training, greater transparency, and civilian oversight boards.

Yes, change is hard. The police have difficult and complicated jobs. Police culture is notoriously slow to change. Law enforcement has powerful political protectors and allies (inc. unions and politicians) that resist change.  Still, I agree with Linda.  We should not let this moment in the spotlight pass without reflecting on what we’ve learned about how to make the police in this country both more effective and humane.

I’ll see you on Monday.

SUGGESTED BACKGROUND READING –

The problem, if you want background:

Reforms Are Happening:

Of special interest – Civilian Oversight boards:

Next Week: Bernie, (The) Donald, and the meaning of populism.

 

Monday’s Mtg: Does Our Juvenile Criminal Justice System Work?

Two of our next three topics relate to the American criminal justice system, and both are Linda’s ideas. On June 6, we’ll do policing reform. Monday we will cover a very, very important topic that gets much less attention: Our juvenile justice system.

We jail/detain a lot of juveniles in this country. On any given day in America, there are more than 80,000 youths in detention and correctional facilities, including 20,000 in juvenile detention centers, 54,000 in youth prisons, and almost 6,000 in adult prisons and jails.   These system’s problems are legion and discussions of them rife with sad phrases like “juvenile solitary confinement” which 24 states permit, and “school-to-prison pipelines.” Individual outcomes can be heart-breaking, including here in Southern California. You also could throw in other systems that treat children and their problems, like foster care and the mental health system, if you want to look at the problem in all its facets.

Yet, quietly over the last 15 years, reformers all over the country have recognized the gross inadequacies of juvenile criminal justice systems and have worked hard to improve them. I know very little about this, but the articles below will give you a sense of what has been accomplished and how much farther we have to go to make youthful offences an embarrassing adult memory rather than the first step towards a ruined life that ruins others’ lives, too.

I will red these articles and a few more and on Monday I will start us off by describing some of the juvenile system’s worst problems and biggest obstacles to reform. Then we can talk about solutions, etc. I will highlight developments in California.

SUGGESTED BACKGROUND READING –

Next Week:  What is a “just war?”

Monday’s Mtg: From Bundy to Black Lives – When Is Civil Disobedience Justified?

Breaking the law in order to highlight its injustice (one, but not the only, definition of civil disobedience) is all around us these days. In our crowded media environment, many individual acts or organized campaigns of civil disobedience don’t break through to the mass media. But, some that did in a big way are:

  • Black Lives Matter;
  • Occupy Wall Street;
  • Protestors disrupting Donald Trump rallies;
  • Cliven Bundy, et. al., facing down authorities in Nevada and Oregon to protest federal govt land policies;
  • Local government officials (like Kim Davis in Kentucky) refusing to sign same sex marriage licenses;
  • Edward Snowden leaking classified information on NSA eavesdropping programs.

Some of thee efforts involved many legal as well as illegal acts, of course, and some have achieved a lot more than just publicity. Black Lives Matter has had a major impact on the Democratic presidential primary and renewed efforts to reform policing. (We will discuss police reform and oversight on June 8.) The anti-Trump protestors have influenced the Republican presidential primary process, just maybe not in the way they intended. Others either fizzled out (Bundy) or just need more time to grow support (Snowden, perhaps).

The perpetrators of all of these illegal acts done for a higher purpose routinely cite as their inspirations famous civil disobedience actions of the past by abolitionists, civil and women’s rights activists, etc.   As the author of one recent book on the subject puts it, civil disobedience is an American Tradition.

Now, I believe we may be entering a new era of political activism. Why is a subject for another days – many, actually.  But I see this new era as arising from widespread public discontent with our political system and parties, income stagnation, and rapid demographic and cultural change. I think civil disobedience will play a heightened role in our politics because of the Internet and social media.  Even if I’m wrong, the recent big protest movements cited above are well worth a meeting.

My idea here is for us to see if we can identify some universal principles on when civil disobedience might be morally and politically justifiable. We’ll look to our own values and our current political and social environment, sure. But we also can use our history, others’ histories (e.g., from Gandhi all the way to terrorism!), religion, and philosophy. The latter two have been arguing about when civil disobedience is and is not justified for generations. There are many interesting questions we can pose. For example…

DISCUSSION QUESTIONS –

  1. DEFINITION: What is “civil disobedience [CD]?” How does it differ from passive resistance or non-cooperation?
    a.  Must CD be non-violent? What is non-violence, anyway?
    b.  When does CD become something else, like insurrection?
  2. CURRENT: What major CD movements/acts are occurring right now?
    a.  How have they been justified by their perpetrators?
    b.  Are they helping or hindering budding political movements?
  3. PAST: Are there any major lessons from U.S. history on when civil disobedience is justified? Do all Americans agree on them?
    a. Has it all depended on the object of the disobedience; i.e., on the morality of the goal? What else has mattered?
    b. Has CD ever worked by itself, unattached to a big political movement?
  4. RELIGION and PHILOSOPHY: What do they say about civil disobedience? When is it justified and within what limits?
  5. LAW/GOVT/YOU/ME: Should the law treat acts of civil disobedience differently from ordinary law-breaking?
    a.  What about when there is no democracy or no way to redress grievances?
    b. Is CD ever morally or religiously required?

SUGGESTED BACKGROUND READING –

Movements involving civil disobedience [CD]:

Justifications:

  • MLK’s Letter from a Birmingham jail, 1963. Highly recommended because notice how he justifies taking direct action.
  • Still, civil disobedience involves many thorny issues. Recommended.
  • Civil disobedience in philosophy. A hard read from the Stanford Encyclopedia of Philosophy.

Problem with + limits to civil disobedience:

Building grass roots political movements

Next Week: Thomas Jefferson and His Legacy.  Jim Z. will guide us!

Monday’s Mtg: Is Our Legal System Being Privatized?

I’ve mentioned many times that in my view the modern conservative political program can be (simplistically, of course) described as in three words: Cut, deregulate, and privatize. Cut taxes, especially on investment. Deregulate industry, especially President Obamas new ones on Big Finance and the health care industries. Privatize public services at all levels of government. This week John S. wants us to talk about a little-understood but very important part of the last part of this three-pronged agenda: The growing privatization of our legal system, especially of the right to sue.

We’re all familiar with the growing private control over the making of our laws, due to lobbying and loosened campaign finance rules. John’s idea should spur us to talk about the increasing private control over the enforcement of our laws. This is true of both civil and criminal law.

In civil law, tort reform (a major conservative political priority) and the now-ubiquitous use by big corporations of binding arbitration clauses in consumer agreements and even employment contracts has severely limited your ability to sue for damages when you are wronged by a big company. Use of class action lawsuits, another check on corporate power, also have been curtailed. I suppose you also could add the rise of secretive investor dispute settlement panels in international trade agreements to this list, since they basically privatize a part of what used to be strictly government-to-government trade law enforcement.

In criminal law, we have privately-owned and operated prisons housing almost 10 percent of all prisoners, and outsourced probation enforcement. The incentives built into this privatizing of legal punishments can lead to sometimes disastrous results (see links). I’m sure I’m missing some of the ways our penal system has been turned over to private contractors.

Finally, and analogous to what is happening with corporations, we have seen our right to sue government when it harms us restricted. Government officials have always had qualified immunity from lawsuits when they are performing their statutorily-mandated duties. But, recent court decision have expanded this type of immunity, as well.

I don’t want to exaggerate these trends. Our entire legal system has not been handed over to corporations and private interests. Yet. Nor, of course, should they all be automatically condemned nor laid at the feet of political conservatives.  The public good may benefit from some of these developments.  But, I think you will learn some unsettling things about the bowels of our legal system on Monday.

Since I’m low on time this weekend, my research (and the readings, below) will focus on the binding arbitration and class action issues. My intro on Monday night will emphasize them. In addition, you may want to read one of the articles on the consequences of state/local governments privatizing the enforcement of probation.

SUGGESTED BACKGROUND READING –

Next Week: What Are the Sources of Islamist Radicalism?

Monday’s Mtg: Are We An Over-Medicated Nation?

Bruce, our group’s doctor, will take the lead on this topic. (Bruce is a neurologist. CivCon probably needs a psychiatrist, but nobody wants that job.) The topic I had in mind had to do with our  – probably – growing problem of prescription drug over-prescribing and abuse.  But, Bruce may prefer to take us a variety of directions, such as:

  • Pain medications: The recent sharp rise in opioid addiction in the Unt4ed States, related to the widespread prescribing of Oxycodone. The big issue, aside from just reducing addiction, is how to balance the need to treat chronic pain with safety issues.
  • Psychiatric drugs: Their alleged overuse by both adults and children.
  • Illicit use of prescription drugs by teenagers and children.
  • Whether widespread legalization of marijuana would make our addiction problems better or worse.
  • Others.

Below are some articles on these and other “are we an over-medicated society” issues. I will add others that Bruce brings them to my attention. I’ll see everybody on Monday night.

LINKS –

Next Week:  Are Americans Too Deferential to their Military?                          ?