human rights violations, law, most absurd human rights violations

The Most Absurd Human Rights Violations (135): Arrested For Overdue Library Book

enck

A Texas man … was arrested for failing to return an overdue library. … In October [2013], police were called to Enck’s Copperas Cove, Texas, apartment on an unrelated disturbance charge, but arrested Enck after finding a past warrant for an unreturned GED study guide. He was released on a $200 bond, then requested time-served. Enck, who has since returned the book, said he couldn’t bring it back initially because he was in prison. He checked it out before beginning a 3-year sentence for robbery. … 

[M]any communities faced with shrinking budgets and rising costs have ordinances calling for fines or even arrest warrants when library property isn’t returned. In Texas alone, the issue has cost libraries an estimated $18 million. (source)

When exactly did we forget that criminal punishment in general, and incarceration in particular, are about incapacitation and the protection of society? I guess we should all feel safer now, knowing this dangerous criminal is off the streets. And while this may be a rare case, over-incarceration is an endemic problem. Scores of people who are no threat whatsoever to no one are put in jail for petty crimes. Almost one in very 100 Americans is in jail.

I personally blame misguided ideas about deterrence and retribution. A fine, community service or some other “alternative” punishment doesn’t seem appropriate to people who believe punishment should fit the crime and deter future crime. Maybe if we understand that deterrence is a hopeless ideal and retribution is incoherent can we kick our prison addiction. But I won’t hold my breath.

Other posts in this series are here

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law, vagaries of moral progress

The Vagaries of Moral Progress (16): Teaching Criminals a “Lesson”

wagging-finger

Let’s assume that we punish criminals in order to “teach them a lesson”: by imposing pain, suffering or unpleasantness on the criminal we intend to make it clear that he or she has done wrong and that we “as a society” disapprove. This lesson in turn is supposed to prevent criminals from reoffending, and hence it is intended to enhance respect for society’s rules. Punished criminals may not always internalize society’s rules and change their mentalities or criminal convictions as a result of “the lesson”, but at least the unpleasantness of “the lesson” will deter them from acting on the basis of their mentalities and convictions. In short, criminal punishment is a means to achieve moral progress. Perhaps if we’re lucky we’ll achieve moral progress in the minds of people, but if we don’t we’ll certainly see moral progress in people’s actions. Or so the story goes.

This is perhaps the most widely shared view of criminal punishment, which is weird when you think of it. After all, one can very easily identify numerous problems with this view. First of all, we impose criminal punishment for the violation of a wide range of rules, many of which we would not or should not view as moral rules. Some of those rules are perhaps even immoral: for instance, the rule against the use of soft drugs can be and often is seen as immoral because it restricts personal freedom. The imposition of punishment for the violation of such immoral rules is a clear step backward from the point of view of morality. No progress there. (The same is true for merely a-moral rules).

Furthermore, one can argue that many of the punishments we impose even for moral rules are in fact brutalizing. Prison is a school for criminals and prison crime is rampant. To argue that imprisonment deters crime and makes the world more moral is to deny the facts of prison life. Prisoners often just become better criminals and make others better criminals, both inside prison and upon release.

And finally, there are certain psychological biases present in those who impose criminal punishment, and these biases also undermine the story of “the lesson”. For example:

In graduate school at the University of Wisconsin-Madison, I proctored law school exams to earn extra money.  At the end of one exam, while I was collecting the final papers, I overheard two students discussing their answers on an essay question about sentencing.  One said to the other: “I gave the rich guy a lesser sentence because I figured, since he had such a cushy life, it would take less punishment to get through to him.” … the perception that Black people have already had to cope with a great deal of pain — from racism, poverty, poor health, etc — and, as a result, have a greater pain threshold. In other words, they are less sensitive to pain because they’ve been hardened.

Efforts to parse out whether this effect is due to race specifically or perceptions of whether a person has lived a hard life suggest that it might be primarily the latter. But … we tend to homogenize the Black population and assume that all Black people face adversity. So, whether the phenomenon is caused by race or status gets pretty muddy pretty fast.

In any case, this is perfectly in line with the soon-to-be-lawyer I overheard at Wisconsin. He gave the “hardened criminal” a harsher sentence than the person convicted of a white-collar crime because he believed that a greater degree of suffering was required to make an impact. (source)

The unfair imposition of punishment as illustrated in this case and in many other real cases of punishment makes a joke of the story about moral progress resulting from the “lesson” of punishment. I’m not saying that fair punishment, deterrence or internalization of rules are impossible. What I’m saying is that we are usually too optimistic about these processes and that we shouldn’t view our current system of criminal punishment as a good driver of moral progress.

More about criminal punishment here. More posts in this series here.

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most absurd human rights violations

The Most Absurd Human Rights Violations (117): Segregation of HIV-Positive Prisoners

prison rape

(source)

South-Carolina is now the only US State where HIV-positive prisoners are segregated in separate housing units with unequal program opportunities, inferior mental health care and fewer work options.

There’s absolutely no reason to do that, unless you want to maintain the reign of sexual terror that is still widespread in US prisons. AIDS is almost exclusively transmitted by way of sexual intercourse and needles. Segregating HIV-positive prisoners makes it easier for prison rapists to pursue their hobby. If you don’t know who’s positive and who’s not, you’ll think twice about raping someone. In the “HIV wards”, since they contain only HIV-positive prisoners, there’s also no more reason to refrain from rape.

Things like this make it hard to believe that legislators and prison authorities are not intent on making prison as horrible as possible.

More absurd human rights violations.

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most absurd human rights violations

The Most Absurd Human Rights Violations (112): The Tagging of Prisoners With HIV

Jew in Paris, wearing the star

Jew in Paris, wearing the star

(source)

You can’t tell by looking at someone whether he or she is living with HIV. That is, unless you catch a glimpse of a man who’s living with HIV in the state of Alabama’s prison system.

There are over 200 male prisoners living with HIV in Alabama. The Alabama Department of Corrections requires each of them to wear a white armband at all times, making their health status obvious to other inmates, prison staff, and visitors. The practice is a huge affront to prisoners’ privacy and confidentiality. (source)

Let’s list some of the other things that are wrong with this:

  • Why on earth would anyone want to protect prison rapists? Or is it true that the modern day prison system is merely a sanitized front for the perpetuation of medieval punishment?
  • Measures such as these nourish the stigma of HIV patients.
  • They promote false beliefs about HIV transmission.
  • Etc.

More absurd human rights violations.

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racism

Racism (26): Racism in Criminal Justice

Twelve Angry Men

Scene from the movie “Twelve Angry Men”, about an all-white, all-male jury exonerating (albeit after some trouble) a defendant who’s probably not white

(source)

African Americans get, on average, a raw deal from the criminal justice system in the US. They get arrested more often, in part because of racial profiling; when they end up in court, they face racially biased juries; and when it’s time to sentence them, they receive harsher penalties and join an already overrepresented group in the prison system (African Americans are more likely to spend time in jail and when they do they spend more time in jail). Some more evidence:

Biased juries

Here’s a study showing that the racial composition of juries affects trial outcomes and conviction rates:

This article examines the impact of jury racial composition on trial outcomes using a data set of felony trials in Florida between 2000 and 2010. We use a research design that exploits day-to-day variation in the composition of the jury pool to isolate quasi-random variation in the composition of the seated jury, finding evidence that (i) juries formed from all-white jury pools convict black defendants significantly (16 percentage points) more often than white defendants, and (ii) this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member. The impact of jury race is much greater than what a simple correlation of the race of the seated jury and conviction rates would suggest. These findings imply that the application of justice is highly uneven and raise obvious concerns about the fairness of trials in jurisdictions with a small proportion of blacks in the jury pool. (source)

Whether or not someone is convicted has a lot to do with the luck of the draw or with the success of prosecutors or defendants wishing to remove people from juries. This raises obvious concerns about the fairness of criminal justice.

Here are the study’s results in the form of a drawing:

racial bias in jury trials

(source)

Biased prosecutors

African Americans receive longer sentences because prosecutors are, on average, more likely to charge them with crimes that require minimum sentences:

This study provides robust evidence that black arrestees in the federal system—particularly black men—experience moderately but significantly worse case outcomes than do white defendants arrested for the same crimes and with the same criminal history. Most of that disparity appears to be introduced at the initial charging stage …  [C]ompared to white men, black men face charges that are on average about seven to ten percent more severe on various severity scales, and are more than twice as likely to face charges carrying mandatory minimum sentences.  These disparities persist after charge bargaining and, ultimately, are a major contributor to the large black-white disparities in prison sentence length. (source)

Biased police

An example of racial profiling: a study of New York City’s stop-and-frisk program has revealed that

out of all ethnicities stopped, white people had the highest chance of having committed a crime, despite being proportionally the least searched. (source)

racial profiling in NY

(source)
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human rights and crime, justice, law

Crime and Human Rights (18): The Cruelty of Life Imprisonment Without Parole

prison

(source)

My dismissal of capital punishment on moral grounds shouldn’t be understood as implying that this type of punishment is the worst possible one or that I’m ready to accept any other sentence in order to avoid executions. Life imprisonment without parole (LIWOP), for example, is often advanced as a good alternative to capital punishment and a means to convince people to drop their demand for that sentence. That makes LIWOP seem almost benign, which it isn’t. It’s particularly cruel, for reasons I discuss below.

That is why I tend not to argue as follows: capital punishment is bad because there is a less cruel punishment available – LIWOP – that does much of the things capital punishment is supposed to be doing (incapacitation, deterrence etc.). I argue instead that there are other reasons, beside overreach, not to use capital punishment. However, this post is not about those reasons, but rather about the reasons why we should also not use LIWOP.

Of course, “death is different” and capital punishment is particularly cruel. But LIWOP is also cruel, albeit mostly for other reasons. In one respect, it’s cruelty is similar to that of capital punishment. It’s irrevocable. The absence of parole means that “life” really is “life”. Of course, there’s often the possibility of clemency or appeal. But given the general “tough on crime” mentality among politicians and prosecutors, clemency for LIWOP cases is very unlikely, as are possible extensions of the right to appeal.

We also see, in the U.S. for instance, that clemency is more likely to be granted in capital cases than in cases of LIWOP since LIWOP is supposed to be “so much less cruel” (although also in capital cases the frequency of clemency is going down, most likely for the same “tough on crime” reason). Also, appeal procedures are much more developed in capital cases than in LIWOP cases. And when there is a successful appeal in a LIWOP case – for example because of new evidence of errors in the handling of the case - then these new elements are much less likely to be considered important enough to review the sentence, again because LIWOP is so much less “cruel”. Some people even argue that it is better to get a death sentence in the U.S. than LIWOP, because the appeals possibilities and clemency success rates are much higher. Especially innocent defendants have a much higher chance of getting their names cleared and escaping their sentence when they are convicted to die. Talking about irony.

Why does irrevocability make LIWOP particularly cruel? Some people say that LIWOP is a death sentence without an execution date. That in itself, however, may not make LIWOP cruel – you could say that all human beings are under a death sentence without an execution date, by the simple fact of human mortality. Still, LIWOP is a sentence to die in prison. It removes any prospect of change, rehabilitation or redemption. Whatever the prisoner does during his sentence, nothing is going to make any difference. Society tells these people that whatever they do, however much they try to redeem themselves, society’s not going to care. It’s not a sentence without an execution date, it’s an execution without a date: we basically tell these people that their lives are over. And we show this by withholding recreational and educational opportunities. Those resources, we say, are limited and better spent on prisoners who will get out some day. So that makes redemption not only useless but also impossible. It’s a self-fulfilling prophecy: we believe that they are irredeemable, and hence we treat them in such a way that they become irredeemable. If you don’t think that’s cruel, check your moral compass.

Opponents of capital punishment such as myself have to issue a mea culpa here. Our opposition has undoubtedly forced many more people into LIWOP. The number of LIWOP cases in the U.S. has risen dramatically, while the number of executions has fallen. One in every 35 prisoners in the U.S. is currently serving LIWOP (that’s about 41,000 people). This is the perverse and counterproductive result of well-intentioned activism. (See here for more counterproductive human rights policies). And it’s likely to become even more perverse: LIWOP cases, which tend to become more numerous as an alternative to capital punishment, don’t offer the same resources in terms of legal representation as capital cases, because people think there is less at stake, even when that’s clearly not true. Hence, a higher risk of miscarriages of justice, which are then harder to put right because of the lower probability of clemency and the less developed appeals procedures that also result from the idea that less is at stake.

So, what’s the solution? Well, obviously life with the possibility of parole. An argument in favor of LIWOP when compared to LIWP is that LIWOP is necessary for reasons of incapacitation. That is indeed a worthy goal of criminal punishment – if not the only goal -and some people do indeed deserve to be incapacitated for a very long time, perhaps even permanently. However, LIWP can also produce permanent incapacitation – by withholding parole when necessary – and can do it better because it can limit it to those prisoners for whom it can be shown, on an ongoing basis, that they are still dangerous. LIWOP means taking a decision about dangerousness once and for all, and then forgetting about the prisoner. The problem is that you can’t, at the moment of sentencing, make the decision that someone is going to be dangerous for the rest of his or her life. We simply don’t have the knowledge for such decisions. Psychology and psychiatry are not advanced enough yet, and will probably never be. Dangerousness has to be monitored continuously. People do change, except of course when the prison regime is such that they don’t get the opportunity or when the sentence is such that they don’t get the incentive.

And existing problems with parole (incompetent or lenient parole boards) are not a sufficient reason to favor LIWOP over LIWP. They are a reason to do something about those problems.

A country overview of the use of LIWOP is here and here. More incarceration statistics. More about human rights and prisons.

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human rights violations, law, most absurd human rights violations

The Most Absurd Human Rights Violations (109): Excessive Sentencing in the U.S., Ctd.

escape scene from O Brother Where Art Thou

escape scene from “O Brother Where Art Thou”

(source)

“[T]hree-strike laws” impose a life sentence on persons who have been convicted of three or more serious crimes. However, the definition of serious crimes depends on the each state. In most states, all three must be violent crimes. But in some states, this is not the case. California law mandates the life sentence for any third felony conviction so long as the first two were deemed “violent” or “serious.” Moreover, an individual can receive multiple strikes from a single incident, leading to unexpected life sentences.

In Rummel v. Estelle, the Supreme Court upheld a life sentence with the possibility of parole for William James Rummel for a felony fraud crime amounting to $120.75. On his third offense, Rummel refused to return money received as payment for unsatisfactory repairs of an air conditioning unit, resulting with a life sentence. In Lockyer v. Andrade, Leandro Andrade received a mandatory sentence of 25 to life for stealing a total of nine videotapes at two different K-mart stores. (source)

Other examples are here. Some incarceration statistics are here. And more posts in this series are here.

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annals of heartlessness

Annals of Heartlessness (26): Hire a Body Double to Serve Your Prison Sentence

Melanie Griffith in a scene from Brian De Palma's Body Double

Melanie Griffith in a scene from Brian De Palma’s “Body Double”

The practice of hiring “body doubles” or “stand-ins” is well-documented by official Chinese media. In 2009, a hospital president who caused a deadly traffic accident hired an employee’s father to “confess” and serve as his stand-in. A company chairman is currently charged with allegedly arranging criminal substitutes for the executives of two other companies. In another case, after hitting and killing a motorcyclist, a man driving without a license hired a substitute for roughly $8,000. The owner of a demolition company that illegally demolished a home earlier this year hired a destitute man, who made his living scavenging in the rubble of razed homes, and promised him $31 for each day the “body double” spent in jail. In China, the practice is so common that there is even a term for it: ding zuiDing means “substitute,” and zui means “crime”; in other words, “substitute criminal.”

The ability to hire so-called substitute criminals is just one way in which China’s extreme upper crust are able to live by their own set of rules. (source, source)

Similar stories about the effects the depths of hardship can have on people are here and here. More in the annals of heartlessness here.

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human rights violations, law, most absurd human rights violations

The Most Absurd Human Rights Violations (107): Excessive Sentencing in the U.S.

Utah prisoners circa 1885

Group of polygamists in the Utah Penitentiary, circa 1885

(source)

[T]he state of Texas … sentenced Willie James Sauls last week for … the crime of stealing a purse. Sauls was sentenced to 45 years in prison. The prosecutors in the case justified the long sentence by pointing out that Sauls has prior convictions and that he “already had chances to address the issues with his behavior.” And with that, they decided this purse snatcher should be locked in prison until he’s 82.

Also in Texas, in 2010, Larry Dayries stole a tuna sandwich from Whole Foods while wielding a knife. He had prior convictions for burglary and theft, so the sandwich incident landed him a 70-year sentence. Larry will be 111 at the end of his sentence.

Down the road in Mississippi, Anthony Crutcher is serving a 60-year sentence for selling $40 worth of cocaine. Anthony was sentenced under Mississippi’s habitual offender laws; his two prior convictions were also nonviolent, minor drug crimes. Anthony is due out of prison a month after his 101st birthday. (source)

That should deter potential criminals. Except that is doesn’t:

A 2003 review of the research on sentence severity and crime rates concluded that “sentencing severity has no effect on the level of crime in society.” And in 2005, researchers at California’s nonpartisan Legislative Analyst’s Office concluded that the state’s notoriously punitive three strikes law, which will send a third-time felony offender to prison for 25 years to life even for a nonviolent offense, has no clear effect on crime rates in the state. (source)

Similar cases are here, here and here.

More on deterrence, on “tough-on-crime” policies and on prison population rates. More absurd human rights violations.

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