Rethinking Justice

As I sit here this week, one week from the college graduation for our first class of IT certification students, during the same week this nation celebrated a national holiday to honor an icon of the civil rights movement, I thought of Dr. King’s prescient words, “Law and order exist for the purpose of establishing justice and when they fail in this purpose they become dangerously structured dams that block the flow of social progress.”  Powerful words; words that should give every American, every Virginian pause, and decide “is it time we rethink our view of justice?”

Early last week former Mississippi Governor Haley Barbour was viciously berated in the media and by political opponents for issuing executive pardons to “murderers and rapists” on his last day in office.  The fact that the U.S. Constitution gives the president and the Mississippi Constitution (and Virginia’s as well) gives the governor the power to modify, amend, or commute any sentence, any conviction, was lost on the critics.  The fact that 189 of the 215 felons pardoned were already out of prison and living in their communities was also lost on the critics.

News pundits blathered on and on misstating facts to suit their ratings drive.

Barbour refused to be baited into the debate.  Instead, he released a statement.  In part, it said the following:

“I am very comfortable with the decisions I made…All this is consistent with the powers given the governor by our constitution…

 My wife and I are evangelical Christians.  Most Mississippians profess to be Christian of some type.  Christianity teaches us forgiveness and second chances.  I believe in second chances and I try hard to be forgiving.   The historic power of gubernatorial clemency is rooted in the Christian idea of giving second chances.  I’m not saying I’ll be perfect, that no one who received clemency will ever do anything wrong.  I’m not infallible, and no one else is.  But I’m very comfortable and totally at peace with these pardons.”

Haley Barbour, a conservative Republican Governor from the heart of the old South made such a simple yet profound case for justice, real justice.  Governor McDonnell would do well to heed the words of Dr. King and Mr. Barbour.  Unfortunately, Virginia’s Governor appears either incapable or unwilling to do what is right.

In a recent story in the Washington Post, Virginia DOC came under scrutiny for its use of solitary confinement.  The Post reported that 44 states and the Federal Bureau of Prisons use solitary confinement yet Virginia – holding almost 2,000 inmates of its 40,000 prisoner population in isolation – accounts for a “sizeable share of the estimated 25,000 people in solitary” around the nation (almost 10%).

And what was Governor McDonnell’s response when this issue was brought to his attention during a recent interview?  He said he was unaware of the complaints.

He then went further, stating “People behind bars have civil rights…”  That’s true, Governor McDonnell.  Yet the prison system you oversee daily violates the rights of those behind bars.  Justice is not an eye for an eye.  Justice does not mean giving the state the power to put an offender in a gladiatorial nightmare with rape, extortion, murder and mayhem circulating around.

As I have noted numerous times in this blog, Virginia’s prison system is a cataclysmic failure.  Justice demands something better. 

Justice it seems is coming to Georgia where its current Governor has proposed sweeping prison reform.

Governor Deal, another Republican, noted that Georgia now spends more than $1 billion a year on state prisons and has seen its inmate population double in the past 20 years (sound familiar, Virginia?).  The state, he argues simply cannot afford to keep the current sentencing regime.  “We’re at a point in time where the necessity for doing something has gotten so big that to turn our head and pretend the problem does not exist is not responsible government.”  I wonder if Governor McDonnell is listening.

In a commission study conducted on behalf of Governor Deal it was found that in Georgia, 60% of the prison admissions represented drug and property offenders; not murderers, rapists or armed robbers.  Simply put, public safety isn’t being enhanced by current sentencing.

The Georgia legislature will vote on changes to save money by using alternatives to prison for non-violent offenders.  Make non-violent offenders accountable but allow them to remain out of prison, taking care of their kids and paying their taxes.  Justice, it appears, is coming to Georgia.

All around the South – South and North Carolina, Kentucky, Texas, Mississippi and Georgia – conservatives, many who are evangelical Christians, are leading the push for a new justice paradigm.  And these politicians’ ranks are growing with GOP candidate Newt Gingrich and former Florida Governor Jeb Bush supporting massive prison overhaul.  And where is Governor McDonnell?  Where is Virginia in this debate?

President Obama recently made news with his last official act in 2011 – signing the National Defense Authorization Act.  This law contains a highly controversial, and suspect, clause which allows the military to indefinitely detain terror suspects, including American citizens arrested in the United States, without charge.

Two retired four-star Marine generals joined GOP Candidate Ron Paul and numerous civil rights organizations to denounce the law, deeming it “misguided and unnecessary” and a threat to America’s constitutionally protected right to due process.  Justice.  The founding fathers included terms such as due process having survived a tyrannical regime who used arrest and detention to stifle dissent.  Protections against unreasonable searches, cruel and inhumane punishment, and the right to trial with counsel, all arose because these men lived, bled and died under the thumb of a corrupt, unjust government.

That some 225 years later this nation must still debate issues of basic, fundamental justice is indeed astounding.  “Injustice anywhere is a threat to justice everywhere.”  Dr. King knew well.  The time for rethinking justice is upon us.  Justice – mercy, forgiveness – must flow.

Bob Dylan was right.  The times, they are a changin.  Virginia and Governor McDonnell can lead like Governors Barbour and Deal and states like Georgia and Mississippi.  Justice is not mere enforcement of harsh laws.

Sentencing (or “The Turd in the Punchbowl” Part 1)

I’ve written numerous times in this blog about sentencing in Virginia and about the systematic failure of “truth in sentencing” as implemented in the Commonwealth. But, people are slow to notice it and even slower to admit it and do something about it.  Perhaps that’s just human nature.  We want to believe our laws are fair.  We want to have easy, rational explanations for everything.  So, politicians tell us truth in sentencing reform was long overdue and has directly led to lower crime rates and more uniform (albeit substantially longer) sentences.  “Great!” You say.  All is right with the world.  “You go over to the punchbowl to lift a celebratory toast to the power of our way of life, good old representative democracy, and you run face first into reality:  someone spiked the punch with a turd and it’s floating in the bowl for all the world to see.

“Conventional wisdom” – lovely term isn’t it – tries to correlate lower crime rates with tougher sentencing.  However, study after study (both university and Department of Justice) find there is no such correlation.  No one ever avoided committing a crime because of the perceived risk of lengthy incarceration.  In fact, what all this “get tough” approach may have done is make us a nation of convicts.

It was recently reported that over 23% of all young people between the ages of 18 and 24 will have arrest records.  The United States currently has the highest per capita incarceration rate in the world (number behind bars per 100,000) and the largest prison population.  We exceed even China and the combined totals of North Korea, Iran, Syria and all the other “terror states”.  Combining federal and state prisons and jails there are approximately 2.5 million people behind bars.  That’s almost one percent of the nation’s population.  Add to that the eight million plus who have felony convictions (a sizeable number of whom are under “community corrections”, i.e. probation or parole).  That’s three percent of America.  Not since England figured out shipping all their convicts to Australia would solve their prison problem, has one nation had such a large percentage of felons.

“Truth in Sentencing” reform was supposed to take away disparity in sentences.  It didn’t matter where in Virginia (or any state for that matter; they all adopted the “truth in sentencing” commission recommendations) you committed your offense, penalties would be the same.  Great concept, only it didn’t work.

This week the Richmond Times-Dispatch reported on a 72 year old Richmond attorney who was sentenced to three years for embezzling in excess of $1 million from individuals during his handling of real estate transactions since 2005.  He made no restitution.  His attorney – coincidentally the same lawyer who handled my case – had asked for a suspended sentence.  The paper reported the defendant “cooperated fully” and “expressed deep regret”.  The Henrico County Circuit Judge presiding over his case (coincidentally, I was held in the Henrico county Jail after being denied bond.  I was deemed a flight risk.  He wasn’t.) gave the three year term as a “fair punishment” for his wrongdoing.

My case was heard less than twenty miles west.  I embezzled slightly over $2 million and made immediate restitution of almost $600,000.  The Commonwealth Attorney noted my “complete cooperation” (his words at my sentencing) and the state’s own forensic psychiatrist, in a report to the court, indicated I was profoundly remorseful and that prison time would serve neither a punitive nor rehabilitative purpose.  So what did the Judge in my case do?  He gave me fifteen years.

I don’t begrudge the Henrico defendant getting three years.  I don’t begrudge the Norfolk bookkeeper being sentenced to four years in a $2.1 million embezzlement case.  I do question the integrity of the system and I do submit that my sentence was excessive and unjust and shows the hypocrisy of “truth in sentencing”.  You will never hear me say I didn’t deserve to be incarcerated.  In fact, I will freely admit sending me to prison was justified – not given other similarly situated embezzlement defendants or the average sentence for child sex abusers.

And then there is GOP Presidential candidate Ron Paul.  Paul reminds me of the old, cranky guy in my neighborhood when I was growing up. He was regimented and serious about everything.  He’d give stern warnings about things and we’d laugh and tell ourselves he was crazy.  As we aged we all realized he was wiser than any of us hoped to be.

On the eve of last week’s New Hampshire primary, Paul – during a candidates’ debate – was asked by Moderator George Stephanopoulos about questions that had recently surfaced concerning alleged racist comments in a 1980’s newsletter that bore his name.
As USA Today columnist DeWayne Wickham noted in an op-ed piece last Wednesday (1/11/2012), Paul said questions about what he wrote or knew about that long ago diverts attention away from the “true racism” in the nation’s judicial system that “disproportionately imprisons blacks for their involvement in crimes…”  The questioner, the other candidates, the audience itself sat in numbed silence.  Congressman Paul had pointed out the turd in the punch bowl.

In 2010, 69% of all people arrested in the United States were white.  Blacks accounted for 28% of the arrests.  These percentages were relatively constant the entire decade.  During the same ten year period, approximately twice as many whites as blacks were arrested each year for drug crimes.  Despite this, Virginia’s inmate population is disproportionately black and poor.  I learned early on I was in the minority in more ways than one.  I’m white, which means I make up only about 35% of the inmate population.  And of the white men locked up, most are in for sex offenses, primarily child sex crimes and child pornography (and almost all are serving substantially shorter sentences than me).

That disparity in incarceration rates shows a lack of justice in the criminal justice system.  As I’ve written over and over in this blog, America’s criminal justice system, Virginia’s criminal justice system, is badly flawed and in need of dramatic overhaul.

You want real justice; begin with admitting there’s a problem.  Don’t just silently stand by while the turd floats in the punchbowl.  It’s time for change, real systematic change:  colorblind sentences that actually bring about restorative justices, and prisons – when needed – where actual rehabilitation and restoration takes place.

If I Could Vote

If I could vote, I’d be solidly, proudly casting my ballot for either Newt Gingrich or Ron Paul.  I’d even consider Rick Perry and Jon Huntsman.  I know, they’re all Republicans.  That’s not why.  Those four men have all expressed support for prison reform.

Newt Gingrich is a founding member of “Right on Crime” a conservative advocacy group calling for fewer prisons, shorter sentences and lower incarceration rates.  They focus on reducing recidivism through a “cost-effective criminal justice system”.  They seek less imprisonment and strategies that emphasize restitution, work and treatment. 

In a policy statement, Right on Crime set out:  “one way to save money is reduce our reliance on prisons which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender… [an] unintended consequence of [prison’] is hardening many non-violent low risk offenders and making them worse than when they entered.”

That it is conservative Republicans pushing prison reform while the nation’s first “black” President has done little to nothing to seek such reform is an irony inmates are still coming to grips with.  If for no other reason than my own excessively long sentence, I am hoping for a GOP landslide in 2012.

Justice?

I’ve spent a good deal of time the past two weeks working with guys in the American Lit (pre-1890) class.  They have research papers due in another week and have been laboriously reading works by Emerson, Thoreau, Whitman, Melville and Douglass.  The paper assignment is to identify a significant cultural change in America that took place in the 19^th century and discuss various writers in context with that change.  It’s a rather heavy topic, especially for guys who’ve never before been exposed to writers of that era.  So many of the young guys in here see life solely in terms of their experiences.  History, other places, other ideas, are as far away as the sun.

So I had a few guys gathered the other afternoon to discuss a couple of their topics.  I explained the philosophical basis for Thoreau’s essay titled “On Civil Disobedience”, how Thoreau refused to pay taxes to support a war against Mexico and instead willingly went to jail.  Your conscience, your moral compass, Thoreau argued, requires you to say no at times even when everyone else says yes.  It was Thoreau’s challenge to the “band wagon” effect:  right and wrong are not defined by popular opinion.

We read Lincoln’s second Inaugural Address where the 16^th President noted both sides believe God supported their interpretation of His word regarding slavery.  And Lincoln went on to note the bloodletting arose from those firm positions.  Yet, he said, no country could survive where one out of eight were enslaved.

We read Frederick Douglass who quoted the Declaration of Independence and then simply asked – how does America espouse such ideals and then fall so short?

Unfortunately, the disconnect these writers saw in America is not confined to the 19^th century.  Thoreau, Lincoln and Douglass are as relevant today as they were in the 1800s; perhaps more so.

This week the Obama Administration announced that a CIA drone had killed a wanted terrorist in Yemen.  Shortly after the announcement Congressman Ron Paul issued his comments.  He said the dead terrorist was a United States citizen (true), who had never been arrested, tried or convicted (true) of any crime.  And he said it was wrong for America to sanction assassinations.

Ron Paul may be a lot of things, but he is clearly a man of conscience.  He may be the only courageous politician in Washington today.  His comments go against everything this country has espoused and committed since September 11, 2001.  That his comments about justice and law are so rarely heard today should give anyone pause who believes in American exceptionalism.

An exceptional country does not kill – assassinate – with drones.

An exceptional country does not put security ahead of justice.

This week I read an interview with the recently released hikers home from prison in Iran.

“In prison”, they said, “we lived in a world of lies and false hopes”.  I found those words ironic.  Everyday 2.3 million men and women languish in prison cells around the country.  Everyday they – no, we – are subjected to violence, filth and degradation.  Everyday in prison is a battle against lies told by officers and treatment counselors.  Everyday is a battle against hope.  And nothing these two male hikers experienced is any different than what the incarcerated in America go through every day.

An exceptional country would not tolerate a prison system as corrupt and poorly managed as America’s.

As I spoke to the guys I saw the power of Thoreau’s words, the intellectual truths of Lincoln and Douglass’ words register.  What those men wrote is not confined to the 19^th century.  Their words are relevant today.  America can do better.  America cannot be a county that approves of assassination in the name of national security.  America cannot be the country of 2.3 million incarcerated and 46 million living below the poverty line.

As Thoreau wrote, “Let your life be a counter friction to stop the machine [of injustice]…do not lend yourself to the wrong….”