Public service time! In the USA, there is a cottage industry of people spreading the word about what rights citizens have during encounters with police. One of the best videos is from 'Flex Your Rights'. It's just below. The video addresses automobile stops and house searches, but I decided to concentrate on this post on police stopping and questioning people on foot. The video starts just as a a police car pulls up to question a young black male. The cops are investigating illegal graffiti in the area. The lawyer comments on each step of the transaction:
So what's the situation in Germany? A popular German legal website has a short but informative article here (g). The basic ground rules:
Police must always give you a reason for stopping and questioning you. However, this reason does not alway have to be a concrete suspicion. In certain circumstances police are permitted to stop people as a preventive measure to avoid dangers to public safety (Gefahrenabwehr). These are not intended to assist in investigating a crime, but rather preventing one.
For this justification to apply, it needs to be shown that a danger to public safety exists at a particular location -- for instance, a demonstration in which disturbances are likely to take place, or a well-known drug market where crimes are routine.
Such places are often named specifically in your local state's local-policing law -- for instance Bavaria allows suspicionless public-safety searches where large numbers of prostitutes gather. Also, in special circumstances police can declare entire regions of a city 'danger zones', as Hamburg did in 2014 during left-wing demonstrations.
And what if the police do stop you based on general location? You are required to answer basic questions: your name, your address, your nationality, date and place of birth. The police can ask you to present an identification card (either the German national identity card or a passport), but you are not required to carry this identification around with you everywhere, so if you don't have it with you, that is not against the law.
The police may ask you further questions, such as where you are coming from and where you are going, but you are not required to answer them. A lawyer quoted in the article recommends that you do answer them in a polite but very curt manner, since this is likely to de-escalate the situation.
Note that this applies only when the police stop you without any concrete suspicion you have committed a crime. If they do have such a suspicion, they may be entitled to ask more questions.
The police are also permitted to engage in questioning of random people without individualized suspicion of crime at airports and train stations and trains. The purpose of these stops is usually to try to find illegal immigrants. A German court has found that stopping someone based solely on their appearance or skin color is unconstitutional according to the German Basic Law. (The lawyer in me says they will almost certainly find other ways to justify the search, though.)
Some comments I've been getting here and elsewhere show some people may be unfamiliar with demographic statistics. So here's a short post to put things in perspective:
The Country of Utopia has 1 million inhabitants, split between two population groups: the Martians and the Plutonians.
There are 900,000 Martians and 100,000 Plutonians.
In 2014, there were 27 murders committed by Martians, and 30 murders committed by Plutonians.
So, the raw number of murders committed by each population group is similar. However, raw numbers are meaningless.
The most common measure in criminology, sociology, and demographics is rate per year per 100,000 people. Almost every population-level statistic you see uses this measure.
So, in 2014 there were 3 murders per 100,000 committed by Martians, and 30 murders per 100,000 committed by Plutonians.
This means the murder rate among Plutonians is about 10 times higher than the murder rate among Martians. (This is generally the ratio in the USA when it comes to murder rates among whites and blacks.)
This also means that only .003% of Martians and .03% of Plutonians committed murder in 2014.
In other words, when it comes to murder, the vast majority of both Martians and Plutonians are law-abiding citizens.
So, the statement that 'those Plutonians are all criminals' is an moronic over-generalization. The statement: 'there is a much higher rate of murder among Plutonians' is accurate.
Now if only .03% of Plutonians are murderers, why is it that some Plutonian neighborhoods may be unsafe to visit? That's because the murder rate within the Plutonian population is not evenly distributed. 50% of Plutonians are female, and 50% of Plutonian males are under 10 or over 45. These groups present very low risk of violent crime. For simplicity's sake we'll leave out socio-economic status (poorer people universally have higher crime rates) and focus only on age. 90.5% of all homicides are committed by males, and the vast majority are committed by young males. So to continue with our example:
Let's say that 24 of the 30 homicides were committed by Plutonian men between 10 and 45 years of age: that is, 25,000 people.
That means the murder rate among young Plutonian males is 96 per 100,000. That is 3.2 times higher than the general murder rate for all Plutonians, and 32 times higher than the rate among all Martians.
Let's assume the same effect holds for Martians (not 100% true but close): the murder rate for young Martian males is 3.2 times the overall base rate of 3, or 9.6 per 100,000.
So this means that all things considered, if you want to minimize your risk of being the victim of a homicide, you should probably avoid neighborhoods with large concentrations of young Plutonian males, since they have the highest homicide rate in Utopia. Nevertheless, of course, even in this sub-group, the vast majority of young Plutonians are law-abiding, so your risk of being killed is still very low (especially since these rates are for an entire year and you'll just be there a day). However, assuming that the rates for other crimes show similar characteristics for the rate of homicide (again, this is generally true, but lots of caveats apply), your risk of being the victim of some crime in a high-young-male-Plutonian neighborhood may well be non-trivial.
Both the Washington Post and the Guardian have been trying to create national databases of the number of people killed by police in the USA, since the federal government doesn't do this. The Guardian reporters did a Reddit AMA about their series here. The graphic was the result of number crunching done by Bob Somerby and graph by Kevin Drum, who comments:
[A]bout 16 percent of the victims weren't carrying a deadly weapon at the time they were killed. That breaks down like this:
26 blacks out of 132, or about 20 percent.
35 whites out of 253, or about 14 percent.
17 Hispanics out of 83, or about 20 percent.
These percentages are roughly similar across races, but don't account for total population. When you account for that, unarmed blacks are killed at about 4x the rate of whites and 2x the rate of Hispanics.
Blacks are over-represented given their share of the population, but it's impossible to say whether that's true given their much higher share of violent crime, as I've pointed out recently. Obviously each death of an person at the hands of police warrants concern, investigation, and perhaps changes in policy, especially if they're unarmed. But is there a massive epidemic of unarmed black people being gunned down by police in America? No.
The New York Timesnotes China's softening stance on the death penalty:
Last month, China’s Supreme People’s Court overturned the death sentence of a woman who brutally killed and dismembered her husband. The landmark decision to send the high-profile case back to a provincial court was yet another sign that the country’s embrace of the death penalty is loosening.
China is believed to execute more people each year than the rest of the world combined, and 43-year-old Li Yan initially seemed a likely candidate for death row. In 2010, she beat her husband to death with an air gun, chopped him into pieces and boiled his body parts. But police photos and a medical report backed up Ms. Li’s claims that her husband had abused her — stubbing out cigarettes on her body, banging her head against the wall and threatening her with the air gun. The Supreme Court determined, rightly, that these circumstances justified a retrial.
China is putting the brakes on the death penalty. According to Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences, between 2007 and 2011 the annual number of executions in China fell by half. Many violent offenders are now given so-called suspended death sentences, which are invariably downgraded later to life in prison. Such restraint has drawn broad public support.
Interviews conducted by criminologists suggest that international criticism has had an impact as well. In 1977, a mere 16 countries had abolished the death penalty; today 140 countries — over two-thirds of the world’s nations — have done so in law or practice. Chinese legal scholars and judges are fully aware of their country’s role as the outlier.
In 2006 a group of reform-minded justices began formally advocating moderation in punishment. Led by Xiao Yang, then the Supreme People’s Court chief justice, they pushed the maxim “kill fewer, kill cautiously.” The following year, the high court began reviewing all capital cases, creating a strong disincentive for lower courts to hand out death sentences. The substitution in many cases of suspended death sentences — which in practice means offenders spend about 25 years in prison — was the result.
The shift met resistance from hard-liners who warned of a spike in crime. But pandemonium did not ensue. Some criminologists now argue that the harsh campaigns of the past in fact sparked violent crime, by making criminals reluctant to leave witnesses behind.
Readers! Your clairvoyant blog host, Me, totally predicted this in my 2010 book (pp. 234-235):
[China] has one unified national penal code (adopted in 1979 and modified many times since), and a political structure which insulates ruling elites from popular opinion. Were China’s ruling elites to be convinced that abolition was a desirable step, they would be able to implement it without fearing a formal political backlash. Even if Chinese leaders were not swayed by humanitarian concerns, there is a pragmatic case for the move: abolition of capital punishment by China would generate an avalanche of favorable coverage from the international media, and would be a potent weapon against critics of China’s human rights policies. In par- ticular, China could point to the continued use of capital punishment by the United States to parry American denunciations. Given the sensitivity of Chinese officialdom to critiques of its human rights policies, it would seem that abolishing capital punishment would be a low-cost way to project a more sympathetic image on the world stage.
You can buy this masterpiece by clicking on the box to the right. Whatever the price in your local currency, it's a bargain at twice that price!
Another bizarre threat served up by the United States federal criminal-justice system:
The shuttered Hump restaurant in Santa Monica and two of its sushi
chefs have been indicted by a federal grand jury on charges including
selling sei whale meat, an announcement from the U.S. attorney's office in Los Angeles says.
Typhoon Restaurant Inc., the parent company of the Hump, and
Kiyoshiro Yamamoto and Susumu Ueda were named in the nine-count
indictment. Other charges include conspiracy to import and sell meat
from the endangered sei whale and lying to federal investigators.
The Hump closed in 2010 after an associate producer of the
documentary "The Cove," which investigated the killing of dolphins in
Japan, orchestrated a video sting. The Times reported that two participating activists asked if they could order whale meat as part of an omakase
meal and a waitress served eight pieces, according to a federal
affidavit. DNA tests confirmed the meat came from a sei whale, which is
protected under the Marine Mammal Protection Act. It's illegal to sell
any kind of whale meat in the U.S.
If convicted, Yamamoto faces
up to 67 years in prison, and Ueda faces a maximum 10-year term. Typhoon
would face fines totaling $1.2 million.
Yes, you read that right: 67 years for selling whale meat, conspiracy to sell whale meat (which, in the wonderful world of American criminal justice, is actually a separate crime), and lying to federal investigators. So, a chef sells endangered whale meat once to undercover investigators, and now faces 67 years in prison.
To add some context, the chance of this fellow actually getting a 67-year-sentence is low. A federal judge will do the sentencing, and has discretion to impose a much lower sentence than the theoretical maximum. What's happening here is that prosecutors have stacked up as many separate charges as possible to terrorize this man into cutting a deal. If you were faced with this tactic, you would think as follows: There's probably a 90% chance I'll get a sentence of something like 5 years, a 9 percent chance I'll get no prison time, and a 1% chance of getting a sentence of 50+ years (this just an illustration, federal sentencing law is actually more complex than this).
What would you do to avoid even a slight possibility that the rest of your life will be utterly destroyed? A lot. You would take a deal for, say, 8 years. At least then you can be certain of the outcome. If you hadn't been threatened with 67 years in prison, you might have risked a trial, or at least insisted on a deal for 2 or 3 years in prison. But the prosecution can bludgeon you into throwing several extra years of your life away by threatening you with an insanely long sentence that is, at least, theoretically permissible.
And to think that Americans pride themselves on being rugged individualists with a distrust of government power.
The problem of outdated laws inflicting unpredictable, massive penalties on people who use the Internet in unapproved ways (see Aaron Swartz) is also acute in Germany. Case in point: In 2000, a highly unusual-looking man, seeking attention, went out onto the streets of Berlin to dance in a techno-parade. Another attendee filmed him doing his thing. This is the result:
Notice that there's no attempt to conceal the filming. The filmer, Matthias Fritsch, decided to post the video online, figuring it might amuse other people. Indeed it did: the man in the video became known as the Technoviking, and his moves spawned an Internet subculture. Fritsch even made a modest amount of money from all the YouTube views.
And now, thirteen years later, he faces bankruptcy and jail. The Daily Dot reports:
[Fritsch stated:] "I am being accused for creation and publication of images connected to
the Technoviking, therefore infringement of personality rights. They
also say I am earning a lot of money by that. They argue that [I] gave
him the name Technoviking, create 3D characters, comics and more to
constantly increase the popularity in order to market Technoviking and
therefore cause damage to the protagonist"
If Fritsch loses, so does the Internet. He'll have to scrub any original
content he created that featured the Technoviking's likeness, and he'll
be barred from creating new content. Worse, the lawsuit accuses him of
creating numerous other derivative works, most of which Fritsch says he
Failing to do that, Fritsch would face a €250,000 ($334,441 U.S.) fine
and up to six months in jail. Fritsch said the lawsuit only includes
content he allegedly posted, so no matter the result of the trial, other
Technoviking remixes around the Web are safe—for now.
"I can't say how far his intentions go for removing content that is
posted by other people," Fritsch said. "It would be a Don Quixote action
to try removing Technoviking from the Web."
Fritsch, who still won't reveal the Technoviking's identity despite the
lawsuit, said he's not really worried about the trial. He doesn't take
credit for the Technoviking character, which he believes was born out of
the collaborative creativity of millions of Internet users.
"I am only worried that the judge might not understand contemporary
web-culture and therefore judges from an old fashioned perspective,"
Fritsch said. "Artists are not rich usually and I am one of those
artists. To put me in a financial emergency is really something I
Technoviking's lawyer is almost certainly suing under German Persönlichkeitsrecht, which gives people control over how their own image is disseminated. The most famous case is the so-caller Herrenreiter (g) (dressage rider) decision from 1958, in which a professional horse rider's image was used without his permission in advertisements for a tonic thought to increase male potency. You could also sue for this under the common law, since this is appropriation of someone's unmistakable image without consent or payment to use in advertisements for a consumer product.
However, the common law has a different answer when it comes to people who are voluntarily putting themselves on display in public. In this case, the law generally says that if you volunarily go outside and expose your image to thousands of strangers, you are demonstrating that you don't wish that what you're doing should be kept secret, and therefore your image can be taken and used by others. There is, however, an exception for voyeuristic videos that attempt to reveal parts of your body you would wish to be kept secret (such as upskirt videos). That's obviously not an issue here. Some courts also have an exception when your image is used without your consent for a profit-making enterprise that you certainly would have demanded money for participating in had you known about it.
Under the common law, then the Technoviking video can be legally shared. Technoviking went out into a public festival, where certainly knew he might be filmed, and started dancing. He was sharing his image with thousands of strangers, and obviously enjoyed himself doing so. The artist was not using the Technoviking's image to sell a product, and the money he earned from it was merely incidental to its unexpected success. And it was, of course, money for something he created -- the video of an interesting person dancing on the street.
The idea that this could lead to jail time is an absurd consequences of Germany's outdated privacy and intellectual property laws, which also subject you to hefty fines, believe it or not, if someone else (g) posts a copyrighted picture to your Facebook page. The problem here is uncertainty. Germans are normally obsessed with Rechtssicherheit, the notion that the law must be stable and clear, so that private persons can regulate their affairs in peace. But there's a huge hole in that protection when it comes to Internet users. The persistence of these old, overbroad definitions are a constant background threat that chills Internet freedom. Any of you who have a Facebook account could theoretically face a lawsuit tomorrow for something innocent you shared with your friends years ago. All that needs to happen is for someone to find out about it and contacts one of the many German lawyers who specialize in harassing German internet users with ludicrously exaggerated damages claims for infringements both real and alleged.
This is why I have a soft spot for the Pirate Party, for all their shenanigans. None of the mainstream German parties was giving much thought to these issues before the Pirate Party came along. This was due probably in equal measure to technological ignorance, the inherent conservatism of the German legal system, and effective lobbying by the content industry. The Pirates found resonance because they pointed out that outdated laws were making potential criminals of literally millions of citizens, an absurd state of affairs in a country that claims to be governed by the rule of law. The Pirates, in the best tradition of third parties, forced the mainstream to finally face an issue they'd been all to happy to ignore.
The American criminal justice system stands out not only for the severity of its criminal sentencing, but for the incredible leeway it gives to prosecutors. Prosecutors exercise sole discretion over what charges to file against defendants and what deals to cut with them, if any. There are no formal requirements that prosecutors treat like crimes alike, and no rule against a prosecutor singling out one defendant for an extremely severe sentence to 'set an example'.
Although constitutional rules require prosecutors to turn over exonerating evidence to the defense, it is the prosecutor's own prerogative to decide what evidence must be turned over, and what can be kept secret. Not surprisingly, prosecutors often abuse this prerogative and conceal favorable evidence from the defense. If this fact is discovered at all, it may be only after the defendant has spent years in prison, and it often results in no punishment at all for the prosecutor. This is mainly owing to the fact that prosecutors, as government officials, enjoy immunity for actions they take during the course of duty, and this legal protection is nearly impossible to overcome. In 2011, for instance, the United States Supreme Court ruled that a Louisiana prosecutors who confessed to intentionally suppressing blood testing showing a defendant's innocence -- thereby sending him to death row to wait for execution for 14 years -- could not be held liable in a civil court.
But that's not all. Prosecutors can engage in overcharging: threatening defendants with extra crimes despite weak evidence, in order to force them to accept plea bargains. They can also charge defendants with every single act of illegality and seek consecutive sentences, creating the potential for huge punishments. This is also true if all of the violations were only part of one scheme. For instance, if you ran a scam sending out fraudulent letters, the prosecutor can decide to charge you for every single piece of mail the operation sent out, attaching a penalty to each one. So, for example, if you send out 60 fraudulent letters during your scheme, and the maximum sentence for each letter is 5 years in prison, then there is nothing stopping the prosecution from charging you with 60 separate offenses, and asking for a 5-year consecutive sentence on each one, for a total of 300 years in prison. Although this would raise a few eyebrows, and the judge would be likely to impose a much lighter sentence, there's nothing preventing the prosecution from asking for this insane punishment, and judges will often agree to sentence offenders to extremely long consecutive sentences.
The fact that prosecutors are immune from any effective accountability helps to explain the case of Aaron Swartz, the activists who recently committed suicide while facing prosecution for hacking into a database of academic articles. Glenn Greenwald reports:
The Wall Street Journal reported
this week that - two days before the 26-year-old activist killed
himself on Friday - federal prosecutors again rejected a plea bargain
offer from Swartz's lawyers that would have kept him out of prison. They
instead demanded that he "would need to plead guilty to every count"
and made clear that "the government would insist on prison time". That
made a trial on all 15 felony counts - with the threat of a lengthy
prison sentence if convicted - a virtual inevitability.
Just three months ago, [prosecutor Carmen] Ortiz's office, as TechDirt reported,
severely escalated the already-excessive four-felony-count indictment
by adding nine new felony counts, each of which "carrie[d] the
possibility of a fine and imprisonment of up to 10-20 years per felony",
meaning "the sentence could conceivably total 50+ years and [a] fine in
the area of $4 million." That meant, as Think Progress documented, that Swartz faced "a more severe prison term than killers, slave dealers and bank robbers".
girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case
had drained all of his money and he could not afford to pay for a trial.
At Swartz's funeral in Chicago on Tuesday, his father flatly stated that his son "was killed by the government".
and Heymann continue to refuse to speak publicly about what they did in
this case - at least officially....
In sum, as Sen Jim Webb courageously put it
when he introduced a bill aimed at fundamentally reforming America's
penal state, a bill that predictably went nowhere: "America's criminal
justice system has deteriorated to the point that it is a national
disgrace" and "we are locking up too many people who do not belong in
jail." The tragedy of Aaron Swartz's mistreatment can and should be used
as a trigger to challenge these oppressive penal policies. As Moynihan
wrote: "those outraged by Swartz's suicide and looking to convert their
anger into action would be best served by focusing their attention on
the brutishness and stupidity of America's criminal justice system."
I have signed both petitions. Of course, Obama is not going to fire the prosecutor for simply pursuing Draconian punishments -- he probably considers that part of her job. And firing one prosecutor doesn't solve any of the systemic problems. But at least it's shone a bit of sunlight on this area. The more I study other criminal justice systems, the more I become aware of how many aspects of the U.S. system are preposterously outdated, inefficient, and/or unjust. There's a German saying: Der als Normalität getarnte Wahnsinn: Insanity disguised as normality. Hmm, that might make a good subtitle.
The Supreme Court of the United States just handed down a peculiar decision. By a vote of 6-3, it refused to decide an Idaho case in which an extremely mentally ill man was denied any chance to lodge an insanity defense and was sentenced to two life prison terms for murder. This result is possible because, 1982, the state of Idaho decided to break with thousands of years of legal tradition (pdf) and completely abolish the insanity defense. In Idaho, since 1982, mentally ill people cannot introduce evidence of their mental illness and are sentenced to precisely the same prison terms as ordinary criminals: as the law states, '[m]ental condition shall not be a defense to any charge of criminal conduct.' Idaho Code §18–207(1).* The courts of Idaho held that the legislature's decision to abolishing the insanity defense was not inconsistent with Constitutional due process
The United States Supreme Court just allowed that decision to stand. This means the other 46 American states who still permit some sort of insanity defense may, if they choose, now abolish it. They probably won't, though. Three Justices of the U.S. Supreme Court dissented from the majority's decision (pdf). And the mere fact that the Supreme Court didn't take this case does not imply any sort of judgment. They still remain free to decide the issue later -- although this case, Delling v. Idaho, was an excellent test case, since Delling was so disturbed that he had to be medicated for a year just to make him competent to stand trial. Nobody disputed that Delling was mentally ill, and that his illness was responsible for his crimes. But under Idaho law, that was irrelevant.
This is the danger of passing legislation based on a single spectacular case. In Germany, talking heads intervene after a spectacular crime and admonish the public that 'we must remain calm and assess the issue rationally without overreacting to a single incident (Einzelfall).' Examples for the skeptical here (g) and here (g). To some, this phrase may smack of elite condescension, but to others, it's a necessary corrective (these categories are hardly mutually exclusive). To understand this issue, you have to look at the date. Idaho passed this law in 1982 -- that is, just after the trial of John Hinckley, the man who attempted to assassinate President Ronald Reagan on 30 March 1981. Hinckley was found not guilty by reason of insanity after evidence was introduced that he had become obsessed with the actress Jodie Foster.
After Hinckley's acquittal, there was a backlash against the very idea of the insanity defense. Politicians and conservative commentators began thumping the tub, claiming that the insanity defense was being abused everywhere to let guilty criminals off the hook. (In fact, it is only invoked in a tiny percentage of American criminal trials, and is successful only in a minority of those). The message resonated with Americans, who thought that huge numbers of criminals were 'getting off' on insanity pleas (yet another example of the gob-smacking political ignorance of many Americans). In the aftermath of the Hinckley trial, many states and the U.S. government narrowed the insanity defense, and three states -- including Idaho -- abolished it altogether. These laws weren' the product of careful reflection or policy analysis -- they were just spasms of opportunism by politicians eager to exploit a passing public mood.
But Idaho politicians, wary of being accused of being 'soft on crime', never changed the law. Which means paranoid schizophrenic Joseph Delling faces life in prison with mental illness. A Human Rights Watch report describes the future he faces:
Without the necessary care, mentally ill prisoners suffer painful
symptoms and their conditions can deteriorate. They are afflicted with
delusions and hallucinations, debilitating fears, or extreme mood
swings. They huddle silently in their cells, mumble incoherently, or
yell incessantly. They refuse to obey orders or lash out without
apparent provocation. They beat their heads against cell walls, smear
themselves with feces, self-mutilate, and commit suicide.
Doing time in prison is hard for everyone. Prisoners struggle to
maintain their self-respect and emotional equilibrium in facilities that
are typically tense, overcrowded, fraught with the potential for
violence, cut off from families and communities, and devoid of
opportunities for meaningful education, work, or other productive
activities. But life in prison is particularly difficult for prisoners
with mental illnesses that impair their thinking, emotional responses,
and ability to cope. They are more likely to be exploited and victimized
by other prisoners. They are less likely to be able to adhere to the
countless formal and informal rules of a strictly regimented life and
often have higher rates of rule-breaking than other prisoners.
And this all came about because some long-forgotten, perhaps even long-dead Idaho lawmaker, 30 years ago, decided to score political points by introducing a bill eliminating what had been a pillar of the Anglo-American legal order for hundreds of years. I doubt that these long-ago Idaho lawmakers envisioned that the law would be used in cases such as Delling's. They thought they were sticking it to those clever, big-money defense lawyers and cynical, malingering defendants. But once the law is on the books, it's there forever. Who knows how many other mentally ill people have been sentenced to prison terms in Idaho the past 30 years because of this law?
Delling's story showcases the danger of 'legislating based on a singe case.' It's especially likely to happen in the U.S. in the area of criminal law, since accused (and especially convicted) criminals are about the safest punching bags a populist politician can find. And there's nothing to stop these politicians except for their consciences....
A reader emailed me (thanks!) a link to this excellent piece by Liliana Segura for the Nation on US-European criminal-justice contrasts:
The United States is uniquely punitive when it comes to sentencing
compared to much of the rest of the world, whether the crime is murder
or drug possession. Putting aside the death penalty, which lands us in dubious international company, in countries with life sentences on the books, prisoners are often eligible for release after a few decades. “Mexico will not extradite defendants who face sentences of life without parole,” the New York Times’s Adam Liptak noted in 2005
(Most of Latin America has no such sentence). “And when Mehmet Ali
Agca, the Turkish gunman who tried to kill Pope John Paul II in 1981,
was pardoned in 2000, an Italian judge remarked, ‘No one stays 20 years
in prison.’ ”
The same article quoted Yale law professor James Q. Whitman, author
of a book comparing US sentencing with Europe. “Western Europeans regard
10 or 12 years as an extremely long term, even for offenders sentenced
in theory to life,” he said. Today, there are more than 41,000 people
serving life without parole in the United States compared to fifty-nine in Australia, forty-one in England and thirty-seven in the Netherlands. That’s according to a study released this spring,
which found that we are “in the minority of countries using several
sentencing practices, such as life without parole, consecutive
sentences, juvenile life without parole, juvenile transfer to adult
courts, and successive prosecution of the same defendant by the state
and federal government.” In the United States, prison sentences have
gotten longer and longer—a sea change that Americans have come to accept relatively quickly (largely because the targets have been people of color).
Just a few decades ago in high-incarceration states like Louisiana,
lifers were eligible for release in ten and a half years. Today in
Louisiana, there is no longer parole for lifers, and thus virtually no
hope of release, ever. And when it comes to crimes prosecuted under the
War on Drugs, three-strikes sentencing and mandatory minimums have not
only sent people away for life for minor drug offenses—an anomaly
compared to the rest of the world—they have led to a current reality in
which the vast majority of people arrested on nonviolent drug charges plead guilty—whether they are or not—in order to avoid such draconian prison sentences, a decision that can have lifelong implications.
...[T]he notion that a retribution-based system hands out sentences that “fit
the crime” is wildly and tragically false if the United States is your
guide. In the United States, grandmothers are sentenced to life for first-time drug offenses. Mothers who fire a “warning shot” in self-defense at an abusive husband get twenty years in prison. Teenagers who kill their abusive pimp get sentenced to life without parole. Kids who commit crimes at 14 have been condemned to die in prison—getting raped along the way—with no consideration for their age, mental health or abusive upbringing. People land on death row forfailing to anticipate that an accomplice in a crime might kill someone—and people are executed for killings committed by others who then go free. The American model—which Supreme Court Justice Antonin Scalia recently summed up by musing, “I thought that modern penology has abandoned that rehabilitation thing”—is a system rife with injustice.
California will shortly vote on Proposition 34, which would end capital punishment in that state, where 725 prisoners currently await execution. This being America, even a bill to abolish capital punishment had to be given a tough-as-nails title: the 'Savings, Accountability and Full Enforcement' (SAFE) act. David Dow, abolitionist law professor, throws a spanner in to the works by pointing out that many death sentences which would be nullified by the act would be converted into true life sentences without any chance of early release (parole):
The justifications given by death penalty opponents who have embraced
life without parole reveal the extent to which abolitionists have
surrendered the moral basis of their position. It used to be that
abolitionists argued that most people who commit bad acts can change and
that the cruelest punishment one can inflict is to rob a human being of
hope. But this concept—I hesitate to use the word “rehabilitation”—has
seeped out of the criminal justice system over the past forty years.
Prisons are now designed almost entirely for security in mind and not at
all for socialization. Sentences have gotten steadily longer. And while
states are turning away from the death penalty, they are replacing it
with a different kind of death sentence. Sending a prisoner to die
behind bars with no hope of release is a sentence that denies the
possibility of redemption every bit as much as strapping a murderer to
the gurney and filling him with poison.
Opponents of capital punishment often point out that the United
States is the only developed Western country still executing prisoners, a
comparison meant to shame us for being aligned with such human
rights–violating countries as Iran, China and North Korea. It’s not a
bad argument, but exactly the same could be said about life without
parole. Our neighbors to the south don’t have it. Almost all of Europe
rejects it. Even China and Pakistan, hardly exemplars of progressive
criminal justice policy, allow prisoners serving life sentences to come
up for parole after twenty-five years. Meanwhile, the United States
imprisons wrongdoers for sentences that are five to seven times longer
than sentences for comparable offenses in, say, Germany. Yet the
recidivism rate in Germany is roughly 25 percent lower than ours.
There’s no question that touting life without parole as the moral and
cost-effective alternative to the death penalty has been a successful
short-term strategy. But then what? Is it really necessary to eliminate
any possibility of eventual release for all 725 people on California’s
death row? Charles Manson is not serving life without parole, but he has
been rejected every single time he has appeared before the parole board
and will die behind bars. Are some of California’s death row inmates as
monstrous as Manson? I suspect the answer is yes, and the parole board
could keep them in prison too. But there are scores, even hundreds, who
could be released at no significant risk to society.
I'm of two minds about this, as I'm sure Dow is as well. On the one hand, locking a 19-year old up for true life without parole is inhumane and inefficient. No matter how awful the crime he committed, the chance that he will still pose a threat to society at age 59 or 69 is trivial. Perhaps some inmates do need to be kept behind bars for decades, but the vast majority age out of their criminal tendencies. The decision whether to keep them in prison should be made by qualified experts on a case-by-case basis, not cast in stone at the moment of sentencing. As Dow amplifies in this interview (starting about 22:00), both the death penalty and life without parole convey the corrosive, cynical message that rehabilitation is doomed and that it's appropriate for society to give up on criminals.
On the other hand, American voters are still attached to the idea of the death penalty for the worst murders, so it's probably necessary to propose a reassuringly harsh substitute penalty. If you have to sell abolishing the death penalty to voters, life without parole may well be a necessary substitute.
But notice that 'if'. The problem here is that a major human-rights and public-policy issue is being thrown directly to the voters of California, or at least that share of them that plan to vote. There's something quaintly American about referendum-based direct democracy, but there are some issues -- probably most issues, in fact -- that are too complex and far-reaching to be responsibly decided by plebiscite. A couple of decades ago, for instance, California voters decided to pass a stringent anti-tax provision that, years later, continues to cause massive budget shortfalls and is contributing to the destruction of public higher education.
In my view, the way to a more humane criminal-justice system is not to ask voters to replace one uncivilized punishment with another, but to make a systemic change: to put criminal-justice policy into the hands of a select group of well-informed experts who can then counsel the peoples' elected representatives on the best way to prevent and respond to crime. In other words, to adopt the European policy-making approach. Unfortunately, this is a tough message to sell in the U.S.