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Draconian Prison Sentences Smack Up Against Economic Reality

The announcement of the May 24, 2011, 5-4 U.S. Supreme Court decision mandating that  the California Dept. of Corrections  reduce its bloated inmate population by 33,000 from approximately 144,000 is a long time coming, and directly results from the state’s short-sighted, “law and order” campaign carried out by politicians who had effectively  highjacked the prison reform discussion years ago so as to derail meaningful reform policies.

Apparently, California believed in a corrections model premised on the adage “out of sight, out of mind.” Well, now that the consequences- or downside- of this overarching, myopic view  is in California’s face, the state must grapple with what it has created for its people, inside and out of prison. That is, the disgorgement of 33,000 inmates who will be ill-prepared for life on the streets.

This conundrum was a long time coming. Prisoners, on the whole, are politically impotent. That is, those advocating for prisoner’s rights may as well spit into the wind. For most states, it is easier to implement “get tough” legislation than to provide the necessary funds to carry out these legislative mandates.

California is a case study for the devastating effects of implementing harsh sentencing practices without recognizing that non-violent offenders outnumber violent offenders and that most non-violent offenders will return to society. A quick read of Justice Kennedy’s majority opinion underscores the prison conditions and practices that gave rise to the lawsuit alleging cruel and unusual punishment violative of the U.S. Constitution’s  Eighth Amendment.

References to suicides, inmate deaths from non-existent or substandard medical care and overcrowded conditions are peppered throughout J. Kennedy’s opinion. Too bad California could not have foreseen this burgeoning crisis in the early 90’s when this lawsuit began. Yet, since the begining of this litigation California has failed miserably in addressing their problem.

Most states, I suspect, are facing this looming debacle. Why? Because most states were swept up in this “law and order” publicity campaign throughout the country in the mid-70’s and up to a year or two ago. With the economy tanking and a lack of resources to  remedy inmate overpopulation, states will have to resolve their “prison problem” or risk having the courts intervene and dictate how the states will address this crisis.

It is not enough to turn a blind eye to the problem,  hoping the it will correct itself. I don’t know how deep and pervasive this attitude of denial runs, but I’m reminded of a criminal defendant I represented in Sacramento, Ca., federal court. During the proceeding my client, similar to many of the other defendants in this narcotics conspiracy case, was detained. He spent an inordinate amount of time in the jail.

After negotiating a settlement and during sentencing, I explained to the judge the horrific conditions I had been told existed in the Sacramento County Jail. Requesting jail credit for the time my client spent in custody, I asked the Court to consider granting my client twice as much jail credit based on the deplorable conditions my client endured on a daily basis.

The judge quickly rejected my request, noting that if the defendant didn’t want to endure such conditions, then he should stay out of Sacramento. Apparently, it was lost on the judge that my client had never stepped foot in California; he was indicted in the Northern District-Eastern Division while residing in Minnesota.

Hopefully, my knowledge of the conditions at that jail is not typical of the community at large. Unfortunately, the jail’s conditions were well known by the criminal defense bar as well as the law enforcement community in Sacramento.

Maybe the U.S. Supreme Court’s mandate will be the impetus for true, genuine prison reform. If not, then we must wait for the next court to intervene. Until then, “out of sight, out of mind.”

Transparency in Employment-How Much?

Mpls. Star and Tribune Reporter Dan Browning captured my attention with his May 9, 2011, article  titled  “Ex-cons make a killing selling coins”. Apparently, the theme of his article is that the precious metals investment industry is rife with unsavory characters who, while selling gold coins , have engaged in unethical practices.

Mr. Browning’s investigation into  this wide-open industry exposes some shortcomings that seem to be typical of most businesses. The article is peppered with such terms and phrases as “convictions,” “criminal records.” Reference to U.S. Rep.A.Weiner, D-N.Y., who has previously introduced legislation to rein in this industry seems plausible.

Transparency is important. But how far does it get us? 

Two days after Mr. Browning’s article appeared, I read in the New York Times the explosive story of billionaire  Raj Rajaratnam, the manager of Galleon Group hedge fund with 7 billion in assets, who was found guilty of numerous counts of fraud. 

What would transparency have told us about Mr. Rajaratnam? That he was a graduate of  the prestigious Warton School at the University of Pennsylvania and  an accomplished invester and trader. How would the investors in his hedge fund been put on notice that he was engaging in unethical practices?

The point is that regulation of an industry does not assure the average consumer that he/she will be insulated from exploitation. But the bigger issue for me is that Mr. Browning takes a broad swipe at one of the most maligned and easily exploited groups in society: convicted felons. Surprisingly, working for one of the most progressive  newspapers in the country,  Mr. Browning defines this group by historical reference to where some had been in life: prison.

How does defining these employees by their past move the discussion forward regarding protecting the public? Maybe  we can protect the public by marginalizing convicted felons and restrict even more their employment. Hell, they don’t need to have lawful, gainful employment. They have a family- children-to provide for? Their street skills should allow for a steady income for the necessities of life.

Unless, of course, we acknowledge that no matter how flawed, these “ex-cons” are like the rest of us. I’d go so far as to say that one major difference between “ex-cons” and others working in many of our loftier professions is that the “ex-cons” have been caught. What was Bernie Madoff’s criminal background before he was brought to justice?

Quite simply, until we move beyond this label of “ex-con,” any dialogue regarding protecting unsuspecting investors and allowing for fair employment is meaningless.

I mean, if this country can look past Pres. Obama’s associations that would have  undoubtedly prevented him from clearing a background check to be an FBI agent, and yet be elected president of the United States, then we can surely look past a felon’s transgressions and allow him/her be a contributing member of society.

Economics Trumps Retribution in Minnesota Prisons

In an Opinion piece contained in the May 19, 2011, Minneapolis Star and Tribune, Hennepin(Minneapolis) County Sheriff Rich Stanek co-authored an article advocating that tough budget times dictate that we consider releasing non-violent offenders from prison and, instead, use some of the $33,000.00 spent on each inmate each year towards rehabilitation in community-based programs.

If escalating costs drive the argument for reducing prison expenses through utilizing community-based programs, so be it. The recognition that citizens simply cannot afford to subsidize this folly of warehousing  non-violent offenders, regardless of the costs-including sheer economics-is way past due.

Non-violent felons is one of the most exploitable groups by politicians who wrap themselves in the mantel of law and order, to say nothing of the fact that this group politically impotent. Yet, repeatedly, most return to their communities and try to regain some semblance of normalcy while struggling with their demons.

If society as a whole is concerned only with costs, then the most efficient and most rewarding means to dealing with this nagging problem in our prisons is to reduce the inmate population by utilizing community-based programs.

Simply put, we can no longer financially afford to subsidize the illusion of security through incarceration. It is a concept that, if not abandoned, will drag down our economy while continuing to prop up a very wobbly and demonstrably inefficient fallacy.

What Price Innocence for Ex-IMF Dominque Strauss-Kahn?

The focus and visibility brought to bear on the criminal justice system with the charging of Dominque Strauss- Kahn highlights two recurring, but troubling, issues that seem to be part and partial of our justice system. The first is the ubiquitous perpetrator walk or “perp walk.”

Regardless of your opinion of his guilt or innocence, how can we, as a nation that has enshrined the presumption of innocence in the federal and state constitutions,  reconcile the media feeding frenzy tainting a suspect’s right to a fair trial with that same suspect’s right to be presumed innocent? Even Mother Theresa would look guilty during a perp walk.

Why do we simply give lip service to this precious constitutional right? If Mr. Strauss-Kahn is guilty, then the evidence will seal his fate. Rape, in any form and of anyone is, by definition, indefensible. 

However, the jury’s  determination of whether the defendant is guilty or not guilty should be based on legally admissible evidence in a court of law, not in the court of public opinion. And the question for the jury is guilty or not guilty; it is never guilty or innocent as the jury never passes on the issue of innocence. A defendant is presumed to be innocent!

The dissemination of information to the media by the law enforcement community, including press releases by the prosecution, invariably is done so with the objective being to reach and, ultimately, taint the jury pool. We should not passively accept a defendant’s broadside attack on the character of the complainant anymore than such an attack on the defendant’s right to a fair trial with a fair jury.

And this leads to the second recurring issue. That is, the undermining and eroding of the presumption of innocence. The recent press releases state that the investigation is uncovering more damaging evidence. Why is this so important for public consumption? You can see this on full display in the Casey Anthony trial in Florida.

As to the Casey Anthony trial, I am not concerned with her guilt or innocence for purposes of this discussion. I am only concerned with each citizen’s right to a fair trial before a fair and impartial jury.

I guess most people will recognize the presumption of innocence and the right to a fair trial when it hits close to home:  one of their own is charged with a crime. That is not the threshold test for a defendant being tried fairly in the United States, nor should it be.


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