German Joys

My TV Pick for Tonight

...is Arte's Das Gesetz von Las Vegas. This is a series of five two-hour documentaries about real criminal cases in Las Vegas. I watched the fourth installment online (HT A.M.; thanks for the links!) and was deeply impressed. The fifth and final installment of this series airs tonight at 20:40, and I strongly recommend it. The fourth episode involved the murder trial of De Rac Hanley, a 71-year-old alcoholic living in public housing for senior citizens. For reasons that are never really made clear, Hanley viciously stabbed one of his neighbors to death in Hanley's own apartment. The victim  a 70-year-old man who, Hanley claims, had made sexual advances toward him. Hanley is put on trial in Clark County, Nevada for murder.

He is assigned two public defenders (Pflichtverteidiger, lawyers who work for an agency that represents indigent clients) from the local Public Defender (PD) office, and is prosecuted by two relatively young prosecutors. We see both sides preparing for the case: tracking down witnesses, lining up testimony from pathologists and psychologists, and honing their trial strategy. The defense lawyers travel quite a bit to track down people who might be able to shed light on Hanley's history and state of mind. Not only do they learn quite a bit about him, they also bring him back into touch with his estranged wife and daughter, who attend most of the trial. We see photos of Hanley in better days, when he cut a dashing figure as an Irish immigrant with a taste for adventure. Injuries, and the addiction to alcohol and painkillers that developed out of them, laid him low. We learn much less about the victim, but not for lack of trying; nobody can find any of his living relatives. The last part of the film traces Hanley's trial to its sobering conclusion. The film was fascinating, funny, and quite moving at times.

Three things make this series unusual, and really interesting:

1. The filmmakers seem to have gotten pretty much unlimited access from all participants. We learn everybody's real name, and accompany camera crews into the houses of victims' relatives, alcoholics living in shelters, and respectable middle-class witnesses. We also see the prosecution and defense teams preparing their strategies. We are even permitted to see the defense lawyers conferring with their own client before trial, and deciding whether he should take the witness stand. As any lawyer knows, these conversations are strictly protected by the attorney-client privilege; seeing them onscreen is an unheard-of privilege for outsiders. The filmmakers must have gotten consent from dozens of people to get this level of access.
2. We see the defense and the prosecution in about equal measure. The prosecutors have their own problems to deal with: recalcitrant witnesses, potential weaknesses in their case, sympathy factors, etc. The public defenders are very good. Judging from the morale, the amount of resources, and the skill of the courtroom presentation, the Clark County PD's office would seem to be doing an excellent job.
3. Related to number 2, the documentary doesn't take sides; it's almost Wiseman-like in its neutrality. The prosecutors aren't portrayed as vengeance-driven ogres, as is usually the case in European documentaries about the American criminal justice system. Nor is the defendant portrayed as a misunderstood victim of circumstances. Nor is the crime he committed glossed over as if it were irrelevant: we see photos of the crime scene, which are not for the faint of heart. Most importantly, there is no voice-over, telling us what to think about what we've seen, helping us fit it all into the predictable, stuffy world-view of European cultural elites. The directory, Rémy Burkel, simply allows the viewer to make up his or her mind about the case. Europeans will surely be surprised by much of what they see, but no narrator takes their hand and patiently instructs them as to why they should disapprove of it. For this blessed omission alone, Burkel deserves a shower of accolades

Well, if I haven't convinced you yet, at least I've done my best. Arte, to their eternal credit, seems to have put together a bunch of online special features, including a 'hypervideo' of the series that gives you extra access to background information. If you do watch the show, tell me what you thought of it in comments, please. 

There's a Lockdown in Cellblock 'Magiker'...

...because Arne shiv'ed someone with a Solig. Punish him with the comfyPoäng chair!

OK, that's enough flippancy. Today I want to post about something serious. Swedish prisons. Matt Yglesias, commenting on the seemingly flippant attitude of the Swedish men being sent to prison for running the Pirate Bay file-trading service, registers surprise at how indulgent Swedish prisons seem to be (h/t Ed Philp):

But the long and short of it is that, as I understand it, the Swedish system basically understands criminal activity as overwhelmingly stemming from substance abuse problems, mental illness, and ... labor market problems. Consequently, though the prisoners are certainly closely supervised, the conditions in prison are extremely humane and not especially “punitive.” The emphasis is on trying to help people with their problems and trying to ensure that dangerous people aren’t out and about on the streets.

This seems like an opportune occasion for a long, wonky post. From a link within Yglesias's story, we are led to a Ynet article about three Israelis in Swedish prisons who turned down an opportunity to be sent back to Israel to finish serving their sentences:

In Sweden, however, it appears that the imprisonment conditions are so good that three Israelis jail there are not even considering leaving. Every prisoner has his own cell with a television airing the World Cup games for free; every six months, the prisoner gets to tour the streets of Stockholm accompanied by a police car; and the highlight – every prisoner has a the right to a three-day conjugal right in a three-room luxury apartment in the prison.

The official explanation of the purpose of prison in Sweden comes from Sweden's central prison agency, the Kriminalvarden:

Being in prison is punishment. However, it is also a chance to acquire knowledge and experience that reduces the risk of new crime after release. The Prison and Probation Service has extensive programs to give prisoners the prerequisites for life in freedom, free of crime.

Prisoners are offered job training, substance-abuse treatment, and regular contact with the outside world, so that they don't become 'institutionalized.' 

I'm always interested in differences in criminal-justice policy between countries, and how they emerge. Part of Sweden's luxury prisons are down to Swedes' less punitive attitudes. Ordinary Swedes are significantly less punitive than Britons or Americans in their attitudes -- nevertheless, they're still pretty punitive (and increasingly punitive) in their attitudes toward crime (pdf -- pp. 15 & 16). As recently as mid-2001, 49% of Swedes endorsed the return of the death penalty for murder. Thus, the fact that generous prison conditions exist in Sweden doesn't mean that all Swedes endorse that state of affairs.

When writers compare criminal-justice policies, they often begin talking about history and 'values' and 'national character', but frequently ignore a critical factor: who actually makes those policies. As in most other European countries, Swedish criminal-justice policies are created by teams of elite experts. Generally, the government will set up a commission consisting of criminal-law professors, criminologists, psychologists, high-ranking civil servants, judges, and perhaps a few representatives from the bar, as well as police and prison-guard unions. Together, they will work out an entire criminal code in a series of sittings which may last years.

This criminal code will then generally passed by Parliament with few or no revisions. This, at least, was the pattern in Germany, and according to this article, the Swedish process was similar. In fact, major criminal-law reforms came in the mid-1960s in Sweden, as opposed to 1969 in Germany. Prison policies are created in a similar fashion -- top-down, by a select committee drawn from a group of policy experts such as criminologists, psychologists and judges. Prison personnel are almost always well-trained and well-paid civil servants with high unionization rates, excellent job security, and a relatively strong sense of obedience to the mission of the agency they work for.

In countries such as Sweden, thus, we have a situation in which the general public has no direct influence on criminal-justice policy or prison conditions. Even if there is a large shift in public opinion toward one of the more conservative parties, this won't change things much, for several reasons. First, piecemeal changes to criminal laws are generally avoided, since they might disrupt the "balance" of the overall legislative framework created by the expert commission. Anything more than minor reforms to the criminal laws will generally be put off until the next commission can be assembled to articulate a basic reform -- and that often takes decades.

Further, the conservative and left parties generally agree on their basic attitudes toward criminal-justice policy. On criminal-justice issues, the key divide in European societies is between the 15-20% of the educated elite and the rest of society. Virtually all high-ranking politicians and professors belong to this elite, and they all share basic attitudes toward crime and prisons, such as opposition to the death penalty, suspicion of penal populism, and commitment to human-rights principles. This policy-making elite intentionally designs systems -- such as blue-ribbon panels and steering committees -- that insulate criminal-justice policy from the vagaries of public opinion.

To European elites, this insulation of criminal-justice policy from public opinion is a feature, not a bug. Creating a just and workable criminal-justice system, they believe, takes extensive training in psychology, criminology, law, and a few other disciplines as well. The 'common man' could no more design a proper penal system than he could a nuclear reactor. This is a fundamental difference in world-view and political structure between Europe and the United States, but it's not often well-understood by commentators -- despite my frequent long, boring posts!

Re-Thinking Mass Incarcertaion

Every once in a while, this blog will focus on the vast differences in criminal-justice policy between Europe and the United States. Now comes news that those differences might just be narrowing, on the initiative of Virginia Senator Jim Webb: 

"Sen. Jim Webb (D-Va.), speaking from the Senate floor last week, said, "Let's start with a premise that I don't think a lot of Americans are aware of. We have five percent of the world's population; we have 25 percent of the world's known prison population. There are only two possibilities here: either we have the most evil people on earth living in the United States; or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice."

"After two [Joint Economic Committee] hearings and my symposium [on prison reform] at George Mason Law Center, people from across the political and philosophical spectrum began to contact my staff," Webb told the Huffington Post. "I heard from Justice Kennedy of the Supreme Court, from prosecutors, judges, defense lawyers, former offenders, people in prison, and police on the street. All of them have told me that our system needs to be fixed, and that we need a holistic plan of how to solve it."

Webb's reform is backed by a coalition of liberals, conservatives and libertarians that couldn't have existed even a few years ago.

Lasser on the European Court of Justice

I just finished reading Mitchel de S.O.L. Lasser's Judicial Deliberations, which is a comparative analysis of the decisionmaking procedures of the French Cour de Cassation, the United States Supreme Court, and the European Court of Justice. I'll spare you a detailed review, since this is really wonkish, but suffice it to say that Lasser challenges the notion that the highly formal, deductive style of Continental legal decisions is an attempt to mislead the audience into thinking the decision was "inevitable" and not guided by normative factors. In fact, Lasser argues, there is plenty of normative reasoning going on in the background of these decisions, in the form of arguments by the Attorneys General. The end result may look clinical, but the process leading to it involved robust and open debate.

So that's Lasser's main point. I liked the way he described the ECJ's conception of its own role (remember that the European Court of Justice in Luxembourg is the court of last resort for disputes between the EU's 27 member states):

"Beware!", the Court seems so often to be saying, "We are at the very point of the fulcrum,and we can therefore feel the precariousness of the situation. We have been carefully building a delicately balanced structure that does its best to take all of the difficult and often opposing considerations into account. But if you push slightly too hard, if you resist slightly too much, in fact, if you ask a few too many questions and force us to be slightly too explicit in our responses, you will bring the entire house down!" (p. 360)

Getting Prisons "Just Right"

Most European criticism of America's human-rights record focuses on the death penalty. However, the widespread use of solitary confinement in so-called "supermax" (super-maximum security) prisons is another issue. Atul Gawande has an article about it in the New Yorker:

Prolonged isolation was used sparingly, if at all, by most American prisons for almost a century. Our first supermax—our first institution specifically designed for mass solitary confinement—was not established until 1983, in Marion, Illinois. In 1995, a federal court reviewing California’s first supermax admitted that the conditions “hover on the edge of what is humanly tolerable for those with normal resilience.” But it did not rule them to be unconstitutionally cruel or unusual, except in cases of mental illness.  The prison’s supermax conditions, the court stated, did not pose “a sufficiently high risk to all inmates of incurring a serious mental illness.” In other words, there could be no legal objection to its routine use, given that the isolation didn’t make everyone crazy. The ruling seemed to fit the public mood. By the end of the nineteen-nineties, some sixty supermax institutions had opened across the country. And new solitary-confinement units were established within nearly all of our ordinary maximum-security prisons.

The number of prisoners in these facilities has since risen to extraordinary levels. America now holds at least twenty-five thousand inmates in isolation in supermax prisons. An additional fifty to eighty thousand are kept in restrictive segregation units, many of them in isolation, too, although the government does not release these figures. By 1999, the practice had grown to the point that Arizona, Colorado, Maine, Nebraska, Nevada, Rhode Island, and Virginia kept between five and eight per cent of their prison population in isolation, and, by 2003, New York had joined them as well. Mississippi alone held eighteen hundred prisoners in supermax—twelve per cent of its prisoners over all.

...

As it happens, only a subset of prisoners currently locked away for long periods of isolation would be considered truly dangerous. Many are escapees or suspected gang members; many others are in solitary for nonviolent breaches of prison rules.

Gawande notes the devastating psychological effects of prologned solitary confinement, especially on prisoners with intellectual limitations. It's worth noting that the European Court of Human Rights has held that solitary confinement is, itself, not a human-rights violation. The court has, however, suggested that prolonged periods of solidarity would amount to torture outlawed under international human-rights conventions. As Gawande notes, solitary is used in many U.S. prisons for extremely long stretches, almost as a routine state of confinement for many prisoners (especially those with gang ties). 

Europe's problem, by contrast, is overcrowding. Many German prisons are overcrowded (g), and German courts are constantly being asked to determine precisely how few square meters per prisoner amount amount to violations of human dignity. You could say that each country's prison problems reflect its geographical and financial conditions: The U.S. has lots of space and (until recently) lots of political will to build prisons. This results in plenty of room for individual isolation cells, which get used because they exist (if you're only tool is a hammer, everything looks like a nail). In Germany, by contrast, space is at a premium, and  there's precious little money or political will to build massive new prison complexes. So the problem there, in light of rising criminality, is too many people squeezed into too small a space.

Prisons and Punishment in the U.S. and Europe

Warning: this post is slightly wonkish. John Pfaff, a professor at Fordham Law School, lists some myths about prison growth in the United States:

Myth No. 4: In the past three decades, we've newly diverged from the rest of the world on punishment. Given that our incarceration rate before the mid-1970s is one-seventh the rate of today, it is easy to think that we're suddenly acting like outliers. But the fact is that American views on punishment have been harsher than Europe's since the birth of this country (although politicians may overestimate the extent to which they must be tough on crime to win elections). More strikingly, if we look back historically at the lockup rate for mental hospitals as well as prisons, we have only just now returned to the combined rates for both kinds of incarceration in the 1950s. In other words, we're not locking up a greater percentage of the population so much as locking people up in prisons rather than mental hospitals. Viewed through this lens, what seems remarkable is not the current era of mass incarceration but the 1960s and '70s, during which we emptied the hospitals without filling the prisons. Any reform agenda that does not acknowledge the ingrained nature of our punitive impulses will surely fail.

His prescription for reform:

...We need to stop admitting many minor offenders, even if they're serving only short sentences. We need to focus less on high-profile drug statutes and more on the ways small-fry drug convictions cause later crimes to result in longer sentences. Once we start admitting fewer people to prison, we should shift money from prisons to police. If this seems like tinkering, rather than a sweeping fix, that's because it is. See Myth No. 4: Reformers shouldn't waste their breath trying to turn us into Europe.

I'm always interested in comparative criminal-justice -- in fact, I'm writing a book about it now. I have two observations about Pfaff's comparisons of the U.S. and Europe. He's right that European attitudes toward crime seem to be somewhat less punitive than American attitudes. But they're not much less punitive. Europeans have "ingrained punitive impulses" too. You need only read a few issues of a tabloid like Bild in Germany to determine that there are millions of ordinary citizens who would love to see much stricter punishment of criminals.

But what Pfaff downplays is the huge gap in incarceration in the U.S. and Europe since the 1980s. Briefly put, the incarceration rate in most European societies has inched up or remained steady since the early 1980s (depending on the country), but has exploded in the U.S. That is a huge difference in policy outcomes. The main difference between the U.S. and Europe, and one that I find curiously under-studied (hence my book), is that average European voters -- unlike their American counterparts -- have almost no influence over their nations' criminal-justice policies. 

Let me state a general case. In the UK and almost every European nation, serious crime is always regulated by one nationwide penal code. These penal codes were written by commissions of experts (law professors, criminologists, sociologists). They are updated relatively rarely, and then only by the national legislature. When the legislature does want to update the penal code, it will usually turn to a similar commission of experts for advice. Thus, penal code reforms are infrequent, incremental, and subject to expert screening and approval, whether formal or informal.

In the U.S., by contrast, criminal lawmaking is done on a state-by-state basis, and politicians are directly responsive to the public's desire for harsher punishment. After a string of robberies, a state legislator will draft a law doubling prison sentences for robbery, and then immediately introduce it onto the floor of the state legislature (since American criminal law is made on a state-by-state basis). If the law gets the approval of 51% of the other legislators, it's part of the penal code. There will be no expert commission, in fact, the legislator will usually not even bother to consult a law professor. In many states, citizens can directly enact criminal laws by popular referendum.

I know, I know -- many European politicians grandstand with tough-on-crime rhetoric. But if you carefully examine the actual changes in the law that follow the rhetoric, they either never happen, or they consist of minor tinkering around the edges of th existing legal framework. Europe has gotten somewhat more punitive recently, but has not seen the kind of drastic, Draconian laws that the U.S. has enacted.

To sum up: the big difference between the U.S. and Europe is not what average voters think about crime and punishment, but rather how much direct influence he or she has over the government's penal policies. In the U.S., they often have quite a bit; in Europe, they have almost none.

Badinter's "Abolition" in English

While I was back in the States, I noticed that Northeastern University Press has just published an English translation of L'Abolition, former French Justice Minister Robert Badinter's account of his struggle to abolish capital punishment in France, which was crowned with victory in 1981. The translation, by Jeremy Mercer, is excellent. 

The book is much more than a dry legislative chronicle. Badinter was primarily a civil lawyer, but became involved in death-penalty litigation in the early 1970s, when he represented one of the defendants in an infamous prison-breakout murder case.  He lost the case and became a fervent opponent of the guillotine. During the 1970s, he devoted every spare moment to the fight against capital punishment, and represented a series of capital-murder defendants all over France. He won every case, including the notorious case of Patrick Henry, a computer programmer who abducted and killed a small child. This string of successes made Badinter one of the most respected lawyers and most unpopular public personalities in France. Nevertheless, Badinter helped convince Francois Mitterrand to make open and determined opposition to capital punishment a key part of the Socialist Party's election platform in the historic 1981 elections. When the Socialists were swept into power, Mitterrand made Badinter Minister of Justice, and gave his vigorous support to Badinter's legislative initiative against the death penalty.

Badinter is a gifted and lively storyteller, and delivers intriguing thumbnail portraits of the politicians and activists he got to know in his struggle against the death penalty. He also offers aa frank and worldly-wise description of the task of shepherding a not-particularly-popular legislative initiative  through the labyrinthine corridors of French politics. Badinter's legendary personal charm also shines through, as when he describes his first days after his hurried appointment as Justice Minister (to replace a former appointee who decided the job was not to his taste). The French Justice Minister is also known as the "Keeper of the Seals" (Garde des Sceaux). After Badinter was led into his office at the Place Vendome for the first time, he reports his surprise at discovering that the seals actually exist, and the Justice Minister really does guard them -- in a safe in his office no less.

Abolition is an insightful and moving book in any language, and we should be grateful that it's now appeared in English.

Speaking of Open-Book Americans...

Imagine a European murder trial in which the victim's family shows the jury:

a nearly twenty-minute video montage of the victim’s life. Prepared and narrated by the victim’s adoptive mother, the film contained roughly ninety photos of the victim from infancy through high school graduation. Interspersed among the photos were a dozen video clips, some lasting a few minutes, showing the victim engaged in various childhood activities, such as playing with friends in a pool, readying her Halloween costume, and singing in a school choral group.  In the background plays music by Enya – one of the victim’s favorite artists – an Irish musician known for layering recordings of her singing in different languages.

In the final minute, following photographs of the victim’s grave site, the film concludes with video of horsemen riding across the Canadian countryside.  The victim’s mother says, “As time goes by I try very hard not to think of Sarah in terms of this terrible crime that we’ve had to deal with here in the court, but rather think of her in a place like this…This is filmed in Southern Alberta, the land where Sarah’s people lived for so many generations. This is the kind of heaven she seems to belong in.” (The victim, a Blackfoot Indian, was born in Canada.)

The Old Bailey Online

In a perfect fusing of two of my favorite things in the world -- technology and criminal justice, an English university has just digitized and put online the "Proceedings of the Old Bailey", London's central criminal court, for the years 1674-1834.  The Proceedings are short reports of criminal trials geared toward a popular audience.  The website's authors call the over 100,000 trial descriptions "the largest body of texts detailing the lives of non-elite people ever published."

On this day in 1742, for instance, we read that: "Christopher Peterson, otherwise Jack the Sailor, was indicted with one William Briers, for stealing an Oil-Skin Bag, and seventeen Pound Weight of Tea, the Property of William Barton, out of the Shop of the said William Barton." In his defense, the prisoner had this to say: "I have nothing at all to say. I leave it in your Hands, my Lord. I have no Friend in the World." Verdict: Guilty. Sentence: Death. Fortunately, "The Jury recommended him for Mercy," which would generally mean his sentence would be commuted to something like whipping or branding, or possibly "transportation" to Australia or the U.S.

Commercial Bail Bonds in the U.S.

In the latest of an occasional series on aspects of the U.S. justice system that are unique in the world, Adam Liptak of the New York Times looks at commercial bail bonds:

Here as in many other areas of the law, the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States has charted a distinctive and idiosyncratic legal path.

Bail is meant to make sure defendants show up for trial. It has ancient roots in English common law, which relied on sworn promises and on pledges of land or property from the defendants or their relatives to make sure they did not flee.

America’s open frontier and entrepreneurial spirit injected an innovation into the process: by the early 1800s, private businesses were allowed to post bail in exchange for payments from the defendants and the promise that they would hunt down the defendants and return them if they failed to appear.

After reading the article, I found myself -- to my surprise -- of two minds about the practice of commercial bail bonding.  The downside is, of course, that people have to pay a non-refundable fee in order to enjoy their freedom before their trial.  Forty percent of them end up not being convicted of anything, but that doesn't mean they get their fee back.  Most of the people paying these fees are also of very modest means.

On the other hand, the system seems to do a pretty good job of making sure that most people (1) spend most of the time before their trial outside of jail; and (2) show up for court at the appointed time.  European countries, in which options for avoiding pretrial detention are much more limited, often draw criticism from human rights groups for excessive pre-trial detention; in fact, this is a recurrent issue within and beyond Germany -- see here, here and here (g).  I'm not pointing any fingers or drawing any policy conclusions (yet), but it's worth thinking about.