Reporting to you from Queens University, School of Law in Belfast, Northern Ireland, where I am in the middle of a fascinating two week visit at the kind invitation of the Institute of Criminology and Criminal Justice, where I will deliver the annual lecture tomorrow at 4 pm (it is open to the public so please join us if you can get here by then).
Belfast is a beautiful and vibrant city full of young people and wonderfully preserved old buildings. It gets overlooked in comparison to its flashier cousin in the South, Dublin, but has many many charms with very few pretenses and better prices (think Melbourne compared to Sydney, Strasbourg compared to Paris,Manchester compared to London). Yes the wounds of the conflict are still visible and felt, but they share the present with evolving experiments in constructing the future; often visible in the extraordinary collection of murals painted on buildings all over the city which memorialize the conflict and interpret its meaning for the future.
For those who share my interest in both criminology and human rights there are few law schools in the world that combine the depth of expertise in both fields with collaborative engagement between them (Shadd Maruna who is Director of the Institute of Criminology and Criminal Justice sits in an office with a sign on the door saying "Centre for Comparative and International Human Rights Law", which he attributes to office assignment vagaries but seems to me highly appropriate, if confusing). Professors Kieran McEvoy and Phil Scraton both combine criminological and human rights themes in their research.
While here I am holding conversations with these and other colleagues and the very strong group of post-graduate students here at the law school around two themes. First, how influential are governing through crime logics in a post conflict polity like Northern Ireland (with its own devolved Assembly but still part of the United Kingdom)? I have two hypotheses. First, it may be that post conflict societies like NI are resistant to governing through crime since efforts to appeal to an idealized crime victim "everyman" is refracted through the politicized nature of both interpersonal and state violence. This community has powerful memories of violence that is terrible but not "senseless" in the sense of beyond understandable and human narratives. Second, it may be that in post conflict societies the enduring deposits of power in security forces and institutions will work ceaselessly to create a new foundation for legitimacy, perhaps through turning from violence to less political crimes involving drugs and anti-social behavior.
The other topic I am learning about is the role of hope and dignity as values that helped carry people through the conflict in shaping a new agenda for post-conflict justice. There are tremendously motivated cadres of educators, social workers, lawyers, and human rights advocates in this city whose perspective has been shaped by growing up in the midst of the conflict and who bring these values to bear in constructing strategies to address the more mundane but consequential problems of poverty, educational failure, and disempowerment. I am interested in learning how post-conflict themes can shape a new agenda for restoring legitimacy to institutions deformed in the US by mass incarceration, particularly police, prisons, and the juvenile justice system.
Tuesday, March 29, 2011
Monday, March 21, 2011
Bill Stuntz and the Pathological Politics of Crime Control
Those of us concerned with mass incarceration, and friends of the rule of law everywhere have lost a great friend and teacher. Harvard Law Professor William Stuntz has died of metastatic cancer at the age of 52 (read the NYTimes obituary here). Bill's crucial 2001 article in the Michigan Law Review, "The Pathological Politics of Criminal Law," (download it from ssrn here) took on the widely held view that excessive punishment in America was a result primarily of electoral politics. Instead, it was the interaction between electoral politics, influencing legislatures, and institutional design problems, primarily the unchecked power of local prosecutors, that combined to produce incentives for over punishment. The correction was crucial for helping us understand why excessive punishment continues even in periods when electoral politics moves on to other issues (as it has mostly since the late 1990s).
Stuntz will be remembered as well for his humility as a thinker and his extraordinary capacity for empathy. An evangelical Christian with right of center political values, Bill always sought to look beyond his personal value intuitions to the objective structure of institutions that operated to produce trends that only retrospectively looked to be driven by values. Burdened with an extremely painful back condition since the 1990s, Bill faced daily pain, and later the onslaught of terminal cancer with an equanimity that inspired all who crossed his path even briefly (which was my circumstance). His writings included newspaper articles and blog postings that reflected on the human condition through the lens of his own suffering, but also expressed tremendous concern for the suffering of others, especially the poor.
Committed to an intellectual life of service, Bill took precious time away from his family to complete a book on the larger structure of over punishment in our time. Thankfully he was able to complete this and the book, Fighting Crime: Race, Crime, and Democracy in America, will be published in the fall by Harvard University Press.
Stuntz will be remembered as well for his humility as a thinker and his extraordinary capacity for empathy. An evangelical Christian with right of center political values, Bill always sought to look beyond his personal value intuitions to the objective structure of institutions that operated to produce trends that only retrospectively looked to be driven by values. Burdened with an extremely painful back condition since the 1990s, Bill faced daily pain, and later the onslaught of terminal cancer with an equanimity that inspired all who crossed his path even briefly (which was my circumstance). His writings included newspaper articles and blog postings that reflected on the human condition through the lens of his own suffering, but also expressed tremendous concern for the suffering of others, especially the poor.
Committed to an intellectual life of service, Bill took precious time away from his family to complete a book on the larger structure of over punishment in our time. Thankfully he was able to complete this and the book, Fighting Crime: Race, Crime, and Democracy in America, will be published in the fall by Harvard University Press.
Friday, March 18, 2011
Back on prisoner voting and dignity
I'm still pondering the prisoner voting controversy over here (see my last post). At first I thought it was a rather trivial issue, at least to one who is primarily concerned with mass incarceration and the deplorable conditions in many prisons in the US. After all many states of the United States strip prisoners of their right to vote for years after they have been released from prison, while the UK restores voting rights as soon as a prisoner is on parole. But as I've continued to listen to the debate here I find it more and more interesting. Here are some more (somewhat random) observations:
Many UK politicians seem to find it so obvious that prisoners should have no right to vote simply because they are prisoners, without regard to the nature of their crime or their overall sentence, that hardly any one has even discussed what a less blanket ban should look like (listen to an interesting interview on BBC Radio's Law-in-Action, with the UK Attorney General on this issue here). The European Court of Human Rights, Grand Chamber, whose 2005 decision in Hirst v. UK was ignored for five years until a second decision of the Court this November put it back on the agenda), is treated as if this simply came out of far left field, even though a majority of other European countries do permit prisoners to vote. The Grand Chamber's opinion only indicated that given the centrality of voting rights to contemporary European citizenship the denial of voting to prisoners requires at least debate and justification, if not selectivity. But Prime Minister David Cameron took the position that he had only to consult his stomach to determine that the ban was correct, declaring that it made him physically ill to even contemplate prisoners voting.
But why is it so obvious that stripping the vote from prisoners is an appropriate punishment? In contemporary society punishment appears to have two major goals (1) to create a sense of deprivation for those who commit crimes by taking away something they enjoy or impose something that is onerous (like a fine);(2) to incapacitate them from committing crimes or endangering the security of other citizens. We can put aside rehabilitation and reform which are not much celebrated in either the US or the UK today. Yet the curious thing about voting is that it is neither a pleasure nor a danger. Imagine that Queen Elizabeth announced that in honor of the upcoming Royal wedding, all prisoners in Her Majesty's Prisons could choose one of three privileges normally denied prisoners: (1) a night home with the wife (or husband or significant other); (2) a night out with the lads (or lassies) at the local pub; (3) the right to vote in the next general election. How many prisoners do you think would choose the voting booth over the bed or the pub?
Nor is it easy to see how prisoner voting could compromise the security of their fellow citizens. Even imagining that prisoner votes in a particular constituency might swing a close election, there is no reason to assume those votes would lead politicians to adopt policies of leniency or lax law enforcement in order to win those prisoner votes (because they would lose far more votes in doing so). Instead prisoners probably will vote for candidates on the same grounds that many other members of their social class (generally poor) do, in favor of more welfare, fewer cuts, etc.
This brings us to an important point. The only real reason to deny voting as punishment is to degrade prisoners, to underscore that they lack not just freedom, but equality in society. But that is exactly what the ban on degrading punishments in the European Convention on Human Rights (and the Universal Declaration of Human Rights that the US is also bound by) is all about banning.
Many UK politicians seem to find it so obvious that prisoners should have no right to vote simply because they are prisoners, without regard to the nature of their crime or their overall sentence, that hardly any one has even discussed what a less blanket ban should look like (listen to an interesting interview on BBC Radio's Law-in-Action, with the UK Attorney General on this issue here). The European Court of Human Rights, Grand Chamber, whose 2005 decision in Hirst v. UK was ignored for five years until a second decision of the Court this November put it back on the agenda), is treated as if this simply came out of far left field, even though a majority of other European countries do permit prisoners to vote. The Grand Chamber's opinion only indicated that given the centrality of voting rights to contemporary European citizenship the denial of voting to prisoners requires at least debate and justification, if not selectivity. But Prime Minister David Cameron took the position that he had only to consult his stomach to determine that the ban was correct, declaring that it made him physically ill to even contemplate prisoners voting.
But why is it so obvious that stripping the vote from prisoners is an appropriate punishment? In contemporary society punishment appears to have two major goals (1) to create a sense of deprivation for those who commit crimes by taking away something they enjoy or impose something that is onerous (like a fine);(2) to incapacitate them from committing crimes or endangering the security of other citizens. We can put aside rehabilitation and reform which are not much celebrated in either the US or the UK today. Yet the curious thing about voting is that it is neither a pleasure nor a danger. Imagine that Queen Elizabeth announced that in honor of the upcoming Royal wedding, all prisoners in Her Majesty's Prisons could choose one of three privileges normally denied prisoners: (1) a night home with the wife (or husband or significant other); (2) a night out with the lads (or lassies) at the local pub; (3) the right to vote in the next general election. How many prisoners do you think would choose the voting booth over the bed or the pub?
Nor is it easy to see how prisoner voting could compromise the security of their fellow citizens. Even imagining that prisoner votes in a particular constituency might swing a close election, there is no reason to assume those votes would lead politicians to adopt policies of leniency or lax law enforcement in order to win those prisoner votes (because they would lose far more votes in doing so). Instead prisoners probably will vote for candidates on the same grounds that many other members of their social class (generally poor) do, in favor of more welfare, fewer cuts, etc.
This brings us to an important point. The only real reason to deny voting as punishment is to degrade prisoners, to underscore that they lack not just freedom, but equality in society. But that is exactly what the ban on degrading punishments in the European Convention on Human Rights (and the Universal Declaration of Human Rights that the US is also bound by) is all about banning.
Wednesday, March 9, 2011
Proud to Be from Illinois: Land of Lincoln becomes 16th State to Abolish Capital Punishment
Illinois today became the 16th state to ban capital punishment when Governor Pat Quinn, recently elected Democrat signed into a law a bill abolishing capital punishment and passed by the Illinois legislature several weeks ago (read John Schwartz and Emma Fitzsimmons reporting in the NYTimes here). Governor Quinn's statement highlighted the "new abolitionism" themes that are bringing the death penalty down in the USA (Illinois is the 3rd state to remove an existing death penalty law in the past several years, along with New Jersey and New Mexico, and was a far heavier user of the sentence than either of the other recent abolishing states). Having stated his support for the death penalty if applied carefully and justly in the campaign only last fall, he said this on signing the law:
These recent legislative abolitions are a real break with the politics of governing through crime in which legislatures have defined themselves above all as on the side of crime victims, a group publicly represented mostly by families of murder victims who embrace capital punishment. When courts abolish the death penalty as unconstitutional, they tend to play into this politics by appearing as an elite institution favoring sympathy for criminals over victims. But as Frank Zimring has pointed out, when legislatures abolish, and governors, who generally position themselves as champions against crime, sign off on abolition, a very different dynamic is taking places.
Quinn's statement emphasized the danger of wrongful conviction, a theme etched in Illinois by a string of gross miscarriages of justice and framed several years ago by Governor George Ryan's mass commutation of the entire Illinois death row at the time. But implicit is a broader critique, i.e., that the death penalty is fundamentally unable to deliver justice and does not provide anymore real protection against crime than prisons do. If it did, it would be hard for politicians in the era of governing through crime to withdraw it notwithstanding highly visible errors, for to do so would be to favor a criminal class (most death row inmates having committed other crimes in the past) over the victim as everyman. It is only because the death penalty is increasingly perceived as rotten in its fundamental uselessness that the wrongful conviction issue can have the power it does. After all we know plenty of people are in prison for wrongful convictions as well, many more in fact than are held by death rows, but it has not led to any substantial movement to reduce prison sentences let alone abolish prisons.
Two key features, the prolonged delay of executions almost everywhere (other than Texas and Virginia) and the uncertainty of correctness now associated with death penalty sentences. This produces a punishment that maximizes the degradation of both prisoner and murder victim families. The prisoner suffers something almost as bad as the old death penalty, spending years, sometimes decades on death row, with the possibility of execution hanging over them, and all the while their time in prison appears not to be no punishment to the victims and the public at all (which of course it is) so long as they continue fighting their death penalty-- but to abandon one's appeals is a form of suicide, and act which is inherently degrading. For victims, the prolonged wait and complex pattern of litigation assures a constantly open wound without any sense that justice is being served, even if their loved ones killer has been in prison serving hard time for decades. This is the point now effectively being made by dozens of murder victim family members who signed a letter supporting the abolition bill.
How come it was so difficult for states to get an effective death penalty going again after the Supreme Court's temporary abolition in the early 1970s? That is a crucial question that scholarship should focus on. Capital punishment came back by the late 1970s, but it was like the pets in Stephen King's Pet Sematary there was something not quite right about it. It is remarkable, in the end, that all the effort of the Supreme Court and Congress in the 1980s and 1990s to normalize the death penalty failed and its days are now numbered although it will stagger on for as much as another decade or more.
“Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it,” Mr. Quinn said in a statement. “With our broken system, we cannot ensure justice is achieved in every case.”
These recent legislative abolitions are a real break with the politics of governing through crime in which legislatures have defined themselves above all as on the side of crime victims, a group publicly represented mostly by families of murder victims who embrace capital punishment. When courts abolish the death penalty as unconstitutional, they tend to play into this politics by appearing as an elite institution favoring sympathy for criminals over victims. But as Frank Zimring has pointed out, when legislatures abolish, and governors, who generally position themselves as champions against crime, sign off on abolition, a very different dynamic is taking places.
Quinn's statement emphasized the danger of wrongful conviction, a theme etched in Illinois by a string of gross miscarriages of justice and framed several years ago by Governor George Ryan's mass commutation of the entire Illinois death row at the time. But implicit is a broader critique, i.e., that the death penalty is fundamentally unable to deliver justice and does not provide anymore real protection against crime than prisons do. If it did, it would be hard for politicians in the era of governing through crime to withdraw it notwithstanding highly visible errors, for to do so would be to favor a criminal class (most death row inmates having committed other crimes in the past) over the victim as everyman. It is only because the death penalty is increasingly perceived as rotten in its fundamental uselessness that the wrongful conviction issue can have the power it does. After all we know plenty of people are in prison for wrongful convictions as well, many more in fact than are held by death rows, but it has not led to any substantial movement to reduce prison sentences let alone abolish prisons.
Two key features, the prolonged delay of executions almost everywhere (other than Texas and Virginia) and the uncertainty of correctness now associated with death penalty sentences. This produces a punishment that maximizes the degradation of both prisoner and murder victim families. The prisoner suffers something almost as bad as the old death penalty, spending years, sometimes decades on death row, with the possibility of execution hanging over them, and all the while their time in prison appears not to be no punishment to the victims and the public at all (which of course it is) so long as they continue fighting their death penalty-- but to abandon one's appeals is a form of suicide, and act which is inherently degrading. For victims, the prolonged wait and complex pattern of litigation assures a constantly open wound without any sense that justice is being served, even if their loved ones killer has been in prison serving hard time for decades. This is the point now effectively being made by dozens of murder victim family members who signed a letter supporting the abolition bill.
“To be meaningful, justice should be swift and sure,” they wrote. “The death penalty is neither,” and the trials and appeals “drag victims’ loved ones through an agonizing and lengthy process, which often does not result in the intended punishment.”
How come it was so difficult for states to get an effective death penalty going again after the Supreme Court's temporary abolition in the early 1970s? That is a crucial question that scholarship should focus on. Capital punishment came back by the late 1970s, but it was like the pets in Stephen King's Pet Sematary there was something not quite right about it. It is remarkable, in the end, that all the effort of the Supreme Court and Congress in the 1980s and 1990s to normalize the death penalty failed and its days are now numbered although it will stagger on for as much as another decade or more.
Sunday, March 6, 2011
The Face of the "Monster:" Lori Berenson's Saga as the Criminal Other in the heart of Peru
Jennifer Egan provides a moving account in the NYT Magazine of Lori Berenson's life since being sentenced to life in prison as a terrorist by the Peruvian government of dictator Alberto Fujimori, and since being released on parole (in fits and starts beginning last fall). Berenson a 25 year old American, was convicted in 1996 of collaborating with the Tupac Amaru revolutionary movement, whom the government claimed (apparently with some reason since) was planning a violent seizure of Peru's parliament. Despite the fact that Berenson was at best a minor participant in the plot, including renting an apartment for the group and if the government's case is to be believed, scouting the parliament using her cover as a journalist (something that as Berenson notes, anyone could do since it was a public building), she has long been vilified by ordinary Peruvians as the very face of terror, and her legal travails and recent parole release have been subjects of enormous media frenzies.
Now released to parole in the city of Lima, Berenson is still subject to hateful comments by Lima residents as she goes about the city with her young son Salvador (born in prison). Egan describes going for a walk with Berenson and Salvador
One explanation given for this hatred is the enormous trauma that Peru suffered during the years of terrorism and its repression by the Fujimori regime. Some 70,000 Peruvians are estimated to have been killed, more than half by the government. But while Fujimori is long since disgraced and himself serving a lengthy prison sentence for his crimes in office, and the exposure that so much of the violence was due to the government itself, there is little evidence that Peruvians view Berenson in any more redeeming light, despite the fact that she served 15 years in harsh prison conditions with apparently no trouble or resistance.
Egan's article suggests a number of reasons why Berenson exceeded many far more responsible militants in becoming the face of terror for Peruvians. As a foreigner and especially an American who came to Peru after involvement with left wing groups in Central America, it must have been a relief to Peruvians to see the evil infecting their country as coming from the outside. Perhaps most importantly, according to Egan, Berenson's initial appearance before the media after her arrest was a grimacing and shouting performance that seems to have convicted her before the public, even before her trial.
As Egan reports, the security forces had carefully stage managed the performance, keeping Berenson isolated in terrible conditions before the media show, and (falsely) telling her that she would have to yell because there were no microphones. But her own emotions and idealism must have played a role as well.
What is fascinating about the Berenson saga and troubling for those of us struggling with our own legacy of war on crime and terror in the US, is the way the creation of criminal/terrorist monsters for political purposes, endures in the emotions of a population for years after the circumstances and even the politicians are gone. As Egan notes, the Fujimori regime reaped major benefits in public relations at a time when the far more threatening Shining Path terrorist organization was in full operation, by presenting this foreign threat to Peru and showing that the police and judicial apparatuses could stop her. Yet decades later, and after the reality of Fujimori's dictatorship and its own responsibility for violence, death and terror are fully known to all Peruvians, the regime's construction of Berenson as a monster lives on.
Now released to parole in the city of Lima, Berenson is still subject to hateful comments by Lima residents as she goes about the city with her young son Salvador (born in prison). Egan describes going for a walk with Berenson and Salvador
Berenson insisted we wait until dark to go out; since her parole, she has been hounded by strangers who scream obscenities or call her “assassin” and “murderer.” Just that day, on her way back from the playground with her mother and Salvador, “this woman said: ‘You’re under house arrest! You should be in your house!’ She was with a cellphone, taking pictures. I don’t like going to the park, because people stare at you and make you feel as though you’re not welcome.”
One explanation given for this hatred is the enormous trauma that Peru suffered during the years of terrorism and its repression by the Fujimori regime. Some 70,000 Peruvians are estimated to have been killed, more than half by the government. But while Fujimori is long since disgraced and himself serving a lengthy prison sentence for his crimes in office, and the exposure that so much of the violence was due to the government itself, there is little evidence that Peruvians view Berenson in any more redeeming light, despite the fact that she served 15 years in harsh prison conditions with apparently no trouble or resistance.
Egan's article suggests a number of reasons why Berenson exceeded many far more responsible militants in becoming the face of terror for Peruvians. As a foreigner and especially an American who came to Peru after involvement with left wing groups in Central America, it must have been a relief to Peruvians to see the evil infecting their country as coming from the outside. Perhaps most importantly, according to Egan, Berenson's initial appearance before the media after her arrest was a grimacing and shouting performance that seems to have convicted her before the public, even before her trial.
Five weeks after her arrest, on Jan. 8, 1996, Berenson was taken to a small auditorium in the headquarters of Dincote, Peru’s antiterrorist police, and presented to the press. Her performance was indelible: she took the stage bellowing in Spanish, hands clenched at her sides, long dark hair tumbling down both sides of her face. After denouncing suffering and injustice in Peru, she denied that she was a terrorist by shouting: “In the M.R.T.A. there are no criminal terrorists. It is a revolutionary movement!” — words that, to Peruvian ears, amounted to a confession. She looked scary: big, ungoverned and enraged. To this day, clips from that 15-year-old tirade are part of any news story about her on Peruvian TV; stills from it, in which she appears to be baring her teeth, appeared on the front pages of Peruvian newspapers when she was paroled. Her father told me ruefully: “Forty-four seconds, and it ruined her life. It doesn’t take much.”
As Egan reports, the security forces had carefully stage managed the performance, keeping Berenson isolated in terrible conditions before the media show, and (falsely) telling her that she would have to yell because there were no microphones. But her own emotions and idealism must have played a role as well.
What is fascinating about the Berenson saga and troubling for those of us struggling with our own legacy of war on crime and terror in the US, is the way the creation of criminal/terrorist monsters for political purposes, endures in the emotions of a population for years after the circumstances and even the politicians are gone. As Egan notes, the Fujimori regime reaped major benefits in public relations at a time when the far more threatening Shining Path terrorist organization was in full operation, by presenting this foreign threat to Peru and showing that the police and judicial apparatuses could stop her. Yet decades later, and after the reality of Fujimori's dictatorship and its own responsibility for violence, death and terror are fully known to all Peruvians, the regime's construction of Berenson as a monster lives on.
Wednesday, February 23, 2011
Thnking Allowed about the Death Penalty
David Garland discussed his important new book on America's death penalty (Peculiar Institution) on BBC Radio Four's Thinking Allowed this afternoon (listen here). Along with host Laurie Taylor and former Director of Public Prosecutions, Ken (Lord) MacDonald, David focused on the paradoxes of American capital punishment in the age of abolition. For Garland, America's death penalty is not a reflection of our archaic commitment to blood and vengeance, but a product of a constitutional structure that places such an extraordinarily potent symbolic issue in the hands of locally elected legislatures, prosecutors, and judges (not to mention juries). The result is an extraordinary variegated institution that amounts to largely a symbolic legal statement in most states, and a reason to actually kill someone every month or so, in a couple of state (especially Texas).
While reminding us that more than a 1,000 people have been killed since the restoration of capital punishment in the late 1970s, Garland argues that the real value of capital punishment lies much more in the discursive opportunities it presents for politicians to signify their identity with vulnerable citizens, for the media to stroke existential anxieties that Americans share with most other people around the world, and in large part, to obscure the vastly larger system of mass incarceration which condemns millions to losing part of all of their lives in degrading prisons.
The happiest part of the discussion (for me) was the end where David talked about the possible path to abolition. The end game (which we are hopefully in) is all about states with symbolic death penalties choosing to abolish for cost savings issues. New Jersey and New Mexico have already done that. Illinois passed a law through its legislature but it looks like it may die on the desk of the new Republican governor. If such a process were to unfold, leaving the death penalty an all southern institution, it is possible that even a court dominated by conservatives and cautious liberals would decide that such a sectional institution was inherently cruel and usual (especially if they at least subrosa considered the international pattern).
I fear, however, there will be considerable resistance to this path by those who will argue that keeping even a symbolic death penalty is necessary to block the efforts of reformers to reduce mass incarceration by reducing lengthy sentences for non-capital murderers. This was the precisely the recent argument of conservative San Francisco pundit Debra Saunders (read her column here):
This suggests that the campaign for abolition must become part of the larger struggle against mass incarceration rather than a special pleading that often promotes longer punishments (like LWOP).
While reminding us that more than a 1,000 people have been killed since the restoration of capital punishment in the late 1970s, Garland argues that the real value of capital punishment lies much more in the discursive opportunities it presents for politicians to signify their identity with vulnerable citizens, for the media to stroke existential anxieties that Americans share with most other people around the world, and in large part, to obscure the vastly larger system of mass incarceration which condemns millions to losing part of all of their lives in degrading prisons.
The happiest part of the discussion (for me) was the end where David talked about the possible path to abolition. The end game (which we are hopefully in) is all about states with symbolic death penalties choosing to abolish for cost savings issues. New Jersey and New Mexico have already done that. Illinois passed a law through its legislature but it looks like it may die on the desk of the new Republican governor. If such a process were to unfold, leaving the death penalty an all southern institution, it is possible that even a court dominated by conservatives and cautious liberals would decide that such a sectional institution was inherently cruel and usual (especially if they at least subrosa considered the international pattern).
I fear, however, there will be considerable resistance to this path by those who will argue that keeping even a symbolic death penalty is necessary to block the efforts of reformers to reduce mass incarceration by reducing lengthy sentences for non-capital murderers. This was the precisely the recent argument of conservative San Francisco pundit Debra Saunders (read her column here):
Is the answer to get rid of the death penalty because it's too expensive? Hell, no. As soon as the death penalty is gone, thug huggers will use the same appeals system to go after life without parole.
This suggests that the campaign for abolition must become part of the larger struggle against mass incarceration rather than a special pleading that often promotes longer punishments (like LWOP).
Sunday, February 13, 2011
Sarkozy’s battle with the French magistrates
(Read Angelique Crisafis reporting in the Guardian here)
Special report from Simon Grivet, Paris
Her beautiful smile was everywhere. As soon as Laetitia’s disappearance appeared to be the result of a crime, her picture made front page news. She was an 18 year-old young woman living in Pornic, a small and tranquil seaside resort near Nantes. Hints of a tragedy soon accumulated as the police and gendarmerie intensified their search: her scooter was found, wrecked, on the side of the road; her boyfriend revealed text messages she sent the night of her disappearance in which she said she had been raped; moreover, the police finally arrested one Tony Meilhon, a 32-year-old marginal who had been seen with her the final night. Meilhon had a long record: at age 16 in jail he put a stick in the rectum of another inmate, sentenced for sexual crimes. Meilhon received a 5-year prison sentence he executed entirely. His life was never stable and he accumulated 14 other convictions for theft, robbery and his latest for contempt of the court. He was free under probation but had not yet met with his counselor and recently, in contradictions with the terms of his probation, moved to a new address. Meilhon stubbornly denied having kidnapped, molested or voluntary killed Laetitia. Confronted with such heavy hints of guilt as Laetitia’s blood and DNA in the trunk of his car, he stuck to the same improbable story: he had had a traffic accident with the young woman and, as he saw her dead after the shock, he threw her body in the river Loire. After harrowing days of wait for Laetitia’s family and friends, marked by silent demonstrations, the gendarmerie discovered parts of Laetitia’s body in a pond where the main suspect used to go fishing. The first investigation of the body would indicate that Laetitia had been strangled. Meilhon remains to this day defiant and mute.
On February 3rd, Nicolas Sarkozy came to the city of Orleans – 80 miles south of Paris – for one of his favorite duty: the inauguration of the a new police station. Sarkozy held the post of minister de l’intérieur Head of the Home Office between 2002 and 2005 and built his successful presidential bid in 2007 on a very determined and energetic “law and order” ideology. Security, the “fight against crime and criminals”, those he called “rabble” needed to be taking care of, even if it meant that some urban areas had be “cleaned with a Kärcher”. This tough talk almost immediately brought hostile reactions among civil rights advocates, lawyers and some magistrates. Once elected president, Sarkozy and his first Justice secretary, Rachida Dati, carried out a draconian program to impose a new severity against crime: in 2007 tougher sentencing guidelines for recidivists, in 2008 an almost unique law in Europe enabling the State to keep behind bars a criminal who would have done all his sentence but would have been adjudged “dangerous” by a special panel of magistrates and psychiatrists, etc. These policies have had debated results: more people are incarcerated than never before in France (62 000); at the same time, some French prisons are in disrepair and globally there are not enough spots in prison, overpopulation reaches 120%; crime statistics offer a mixed bag of conflicting results as delinquency appears to be declining but not the specific violence “against the person”, i.e. acts of violence, rape, murder, etc. are increasing. More generally, 15 months before the presidential elections, Sarkozy’s political situation is uncomfortable to say the least. He has lost every local elections held in France since 2007 and his approval ratings are stuck at 30%.
In this context, a couple of days after the discovery of Laetitia’s body, Sarkozy made the following comments about this affair:
Those comments immediately stirred an intense emotion in the Nantes’ court were Meilhon had been sentenced for contempt of the court. First, many observers were surprised that Sarkozy would call Meilhon “the presumed guilty” as a suspect is of course presumed innocent until proved guilty. But magistrates more profoundly felt abused by Sarkozy’s comments as the President seemed to be implying that judges were somehow complicit in this tragic murder. Magistrates argued that they had warned their hierarchy many times that probation officers did not have an adequate workload: in spite of the recommended 60 cases they had 120 or more. Also, the Nantes’ court had only 3 juge d’application des peines (JAP) – a specific judge in France whose specific duty it is to follow and control probation and conditional releases of criminals – when they should have 4. In short, magistrates immediately reminded Sarkozy of the dire state of the justice system in France. Ranked only 37th out of 43 European countries for its justice system budget, France has had those issues for a long time. With only 7 billion Euros, the Justice department is supposed to run some 170 courts, pay all his personnel, their pensions and also run the prison system! Many courts in France are plagued with endemic and pitiful delays: a relatively simple criminal offense like speeding could take 6 to 9 months before being examined.
In Nantes and shortly in all other courts in France, magistrates postponed non urgent matters and adopted protestations motions against Sarkozy. Those actions were already exceptional in a group which by law has no right to strike and by tradition remains conservative and cautious about any involvement in the political arena. But to the surprise of many, especially older magistrates, the movement did not weaken. It led to an historic protest last Thursday when hundreds of magistrates, wearing their black robes, joined by lawyers and police officers, expressed their anger at Sarkozy and ask for better funding.
The fight between Sarkozy and the magistrates thus followed simple lines. Confronted with an original protest from a group he had previously castigated, Sarkozy and his allies presented themselves as the voices and representatives of the victim, close to the people and sharing his simple but essential indignation against such a terrible murder. Members of the government denounced a “corporatist, selfish” movement, “led by unions” and unable to understand the feelings of the population. The media named the magistrates’ movement “a Fronde” which is not a very pleasant denomination as historically the Fronde designated the nobility’s revolt against Anne d’Autriche, Mazarin and the young Louis XIV in 1648-53, a movement of the privileged few, compared to the great Revolution of 1789.
However a poll showed that 65% of the French understand the magistrates’ movement. Thursday night, Sarkozy spent 15 minutes in his 2 and a half hour televised show on the topic of security and justice. On the issues, he did not bulge: if mistakes were made in the Meilhon’s case, sanctions will be handed out. Moreover there will not be any new funding for the justice system. But he had to reassure the millions of viewers that “the immense majority of the French magistrates are doing an excellent job”. The following day, the magistrates’ unions expressed their disappointment and called for a continuance of the movement. Non urgent cases will be postponed again next week and it remains to be seen how the movement will end.
This episode illustrates several traits of the French political situation in a time of “government through crime” in all Occidental nations. First, Sarkozy plays the well-known “law and order” tactic: not only does he present himself as tough on crime and deeply concerned with victims but he also strongly criticizes the magistrates for being either incompetent or guilty of laxity. Second, the magistrates did react to this direct aggression although clumsily at times. The apprehension born out of the massive Outreau scandal – a dozen innocents spent 2 to 3 years in prison for imaginary pedophile crimes – has not disappeared. Sarkozy did play the Outreau card Thursday night reminding viewers that the main investigative magistrate responsible for it had only received a reprimand from his peers. However, the magistrates managed to set up an organized movement which was well received by the public opinion. Sarkozy’s operation of blaming the magistrates for the shortcomings of his policies might well fail this time.
Simon Grivet
History teacher, France
Special report from Simon Grivet, Paris
Her beautiful smile was everywhere. As soon as Laetitia’s disappearance appeared to be the result of a crime, her picture made front page news. She was an 18 year-old young woman living in Pornic, a small and tranquil seaside resort near Nantes. Hints of a tragedy soon accumulated as the police and gendarmerie intensified their search: her scooter was found, wrecked, on the side of the road; her boyfriend revealed text messages she sent the night of her disappearance in which she said she had been raped; moreover, the police finally arrested one Tony Meilhon, a 32-year-old marginal who had been seen with her the final night. Meilhon had a long record: at age 16 in jail he put a stick in the rectum of another inmate, sentenced for sexual crimes. Meilhon received a 5-year prison sentence he executed entirely. His life was never stable and he accumulated 14 other convictions for theft, robbery and his latest for contempt of the court. He was free under probation but had not yet met with his counselor and recently, in contradictions with the terms of his probation, moved to a new address. Meilhon stubbornly denied having kidnapped, molested or voluntary killed Laetitia. Confronted with such heavy hints of guilt as Laetitia’s blood and DNA in the trunk of his car, he stuck to the same improbable story: he had had a traffic accident with the young woman and, as he saw her dead after the shock, he threw her body in the river Loire. After harrowing days of wait for Laetitia’s family and friends, marked by silent demonstrations, the gendarmerie discovered parts of Laetitia’s body in a pond where the main suspect used to go fishing. The first investigation of the body would indicate that Laetitia had been strangled. Meilhon remains to this day defiant and mute.
On February 3rd, Nicolas Sarkozy came to the city of Orleans – 80 miles south of Paris – for one of his favorite duty: the inauguration of the a new police station. Sarkozy held the post of minister de l’intérieur Head of the Home Office between 2002 and 2005 and built his successful presidential bid in 2007 on a very determined and energetic “law and order” ideology. Security, the “fight against crime and criminals”, those he called “rabble” needed to be taking care of, even if it meant that some urban areas had be “cleaned with a Kärcher”. This tough talk almost immediately brought hostile reactions among civil rights advocates, lawyers and some magistrates. Once elected president, Sarkozy and his first Justice secretary, Rachida Dati, carried out a draconian program to impose a new severity against crime: in 2007 tougher sentencing guidelines for recidivists, in 2008 an almost unique law in Europe enabling the State to keep behind bars a criminal who would have done all his sentence but would have been adjudged “dangerous” by a special panel of magistrates and psychiatrists, etc. These policies have had debated results: more people are incarcerated than never before in France (62 000); at the same time, some French prisons are in disrepair and globally there are not enough spots in prison, overpopulation reaches 120%; crime statistics offer a mixed bag of conflicting results as delinquency appears to be declining but not the specific violence “against the person”, i.e. acts of violence, rape, murder, etc. are increasing. More generally, 15 months before the presidential elections, Sarkozy’s political situation is uncomfortable to say the least. He has lost every local elections held in France since 2007 and his approval ratings are stuck at 30%.
In this context, a couple of days after the discovery of Laetitia’s body, Sarkozy made the following comments about this affair:
“When a person like the presumed guilty is allowed to come out of prison without being sure that he would be followed by a probation officer, it is wrong. Those who have committed this fault or let it happened will be punished, it’s the rule.” And he added “When there is such a wrong which led to such a trap, our fellow countrymen would not understand if there weren’t any punishment.”
Those comments immediately stirred an intense emotion in the Nantes’ court were Meilhon had been sentenced for contempt of the court. First, many observers were surprised that Sarkozy would call Meilhon “the presumed guilty” as a suspect is of course presumed innocent until proved guilty. But magistrates more profoundly felt abused by Sarkozy’s comments as the President seemed to be implying that judges were somehow complicit in this tragic murder. Magistrates argued that they had warned their hierarchy many times that probation officers did not have an adequate workload: in spite of the recommended 60 cases they had 120 or more. Also, the Nantes’ court had only 3 juge d’application des peines (JAP) – a specific judge in France whose specific duty it is to follow and control probation and conditional releases of criminals – when they should have 4. In short, magistrates immediately reminded Sarkozy of the dire state of the justice system in France. Ranked only 37th out of 43 European countries for its justice system budget, France has had those issues for a long time. With only 7 billion Euros, the Justice department is supposed to run some 170 courts, pay all his personnel, their pensions and also run the prison system! Many courts in France are plagued with endemic and pitiful delays: a relatively simple criminal offense like speeding could take 6 to 9 months before being examined.
In Nantes and shortly in all other courts in France, magistrates postponed non urgent matters and adopted protestations motions against Sarkozy. Those actions were already exceptional in a group which by law has no right to strike and by tradition remains conservative and cautious about any involvement in the political arena. But to the surprise of many, especially older magistrates, the movement did not weaken. It led to an historic protest last Thursday when hundreds of magistrates, wearing their black robes, joined by lawyers and police officers, expressed their anger at Sarkozy and ask for better funding.
The fight between Sarkozy and the magistrates thus followed simple lines. Confronted with an original protest from a group he had previously castigated, Sarkozy and his allies presented themselves as the voices and representatives of the victim, close to the people and sharing his simple but essential indignation against such a terrible murder. Members of the government denounced a “corporatist, selfish” movement, “led by unions” and unable to understand the feelings of the population. The media named the magistrates’ movement “a Fronde” which is not a very pleasant denomination as historically the Fronde designated the nobility’s revolt against Anne d’Autriche, Mazarin and the young Louis XIV in 1648-53, a movement of the privileged few, compared to the great Revolution of 1789.
However a poll showed that 65% of the French understand the magistrates’ movement. Thursday night, Sarkozy spent 15 minutes in his 2 and a half hour televised show on the topic of security and justice. On the issues, he did not bulge: if mistakes were made in the Meilhon’s case, sanctions will be handed out. Moreover there will not be any new funding for the justice system. But he had to reassure the millions of viewers that “the immense majority of the French magistrates are doing an excellent job”. The following day, the magistrates’ unions expressed their disappointment and called for a continuance of the movement. Non urgent cases will be postponed again next week and it remains to be seen how the movement will end.
This episode illustrates several traits of the French political situation in a time of “government through crime” in all Occidental nations. First, Sarkozy plays the well-known “law and order” tactic: not only does he present himself as tough on crime and deeply concerned with victims but he also strongly criticizes the magistrates for being either incompetent or guilty of laxity. Second, the magistrates did react to this direct aggression although clumsily at times. The apprehension born out of the massive Outreau scandal – a dozen innocents spent 2 to 3 years in prison for imaginary pedophile crimes – has not disappeared. Sarkozy did play the Outreau card Thursday night reminding viewers that the main investigative magistrate responsible for it had only received a reprimand from his peers. However, the magistrates managed to set up an organized movement which was well received by the public opinion. Sarkozy’s operation of blaming the magistrates for the shortcomings of his policies might well fail this time.
Simon Grivet
History teacher, France
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