Aggressively Defending My Clients Since 1990


On Behalf of | Oct 22, 2016 | Firm News

I have always thought curious people who want the death penalty but oppose abortion.  In the words of George Carlin:

These conservatives are really something, aren’t they? They are all in favor of the unborn, they will do anything for the unborn, but once you’re born, you’re on your own! Pro-life conservatives are obsessed with the fetus from conception to nine months. After that they don’t want to know about you, they don’t want to hear from you . . . no neo-natal care, no day care, no head start, no school lunch, no food stamps, no welfare, no nothing! If you’re pre-born, you’re fine. If you’re pre-school, you’re fucked.  Conservatives don’t give a shit about you until you reach military age. Then they think you are just fine, just what they’ve been looking for. Conservatives want live babies so they can raise them to be dead soldiers.  Pro-life… these people aren’t pro-life, they’re killing doctors! What kind of pro-life is that? They’ll do anything they can to save a fetus, but if it grows up to be a doctor they just might have to kill it? They’re not pro-life.

Similarly, many people oppose corporal punishment for children.  They say you should not hit a child for discipline because that just teaches them to hit.  Yet, these same people have no objection with the few police officers who whack someone on the street.  Or in jail. Or in prison.  Guess that is a different lesson than corporal punishment.
And it seems odd to me that individuals can buy assault weapons without showing identification in more than 30 states, while states like Wisconsin prohibit allowing individuals to vote without some form of identification. In recent years, 13 states have passed stricter voter ID requirements and half a dozen more are considering voter suppression measures in the aftermath of the Supreme Court ruling invalidating a key section of the Voting Rights Act.  I guess using your fingers to grab a pen and vote is more violent than using your fingers to grab the trigger of a gun.

These inconsistent views on violence might explain the schizophrenic view of violence in the criminal system.  I have always found interesting philosopher Newton Garver’s observation that those who deplore violence loudest and most publicly are usually pillars of the status quo who rarely see violence in defense of the status quo in the same light as violence directed against it.  Politicians manipulate public perception of the criminal system by catching voter’s ears by saying they are “the law and order” candidate or that they will get “tough on crime.”  All the while, many of those in power break the law.  This was given expression years ago by Richard Nixon claimed it was acceptable for the president to break the law because “when the president does it, that means it is not illegal.”  Nixon’s thought process lives on today.  Condoleezza Rice justified waterboarding and torture by saying, “The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture.”  Does anyone remember why we say we should not spank our children?

Clearly, concern with violence is what should drive the criminal system.  DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 12 (2001) (“Today, there is a new and urgent emphasis upon the need for security, the containment of danger, the identification and management of any kind of risk. Protecting the public has become the dominant theme of penal policy.”)  John Gardner, Rationality and the Rule of Law in Offences Against the Person, 53 CAMBRIDGE L.J. 502, 504–06 (distinguishing crimes of violence from the broader category of crimes against the person, and emphasizing that violence requires the intentional infliction of injury)..  Violence is the primary concern of people because it is the ultimate reality.  Perhaps that is as it should be since, as Kafka once said, enlightenment comes to the most dull-witted man not with his eyes but with his wounds.  Franz Kafka, In the Penal Colony, in THE COMPLETE STORIES 150 (Nahum Glazer ed., 1971).  Indeed, some have recommended the system should focus not crime but on violence.  FRANKLIN E. ZIMRING & GORDON HAWKINS, CRIME IS NOT THE PROBLEM: LETHAL VIOLENCE IN AMERICA xii (1997) (“We hope to change the subject, in both scholarly and policy analysis in the United States, from crime control to the control of lethal violence.”).

If the focus of the system becomes violence not simply crime, errors in the system immediately jump out.  Of the offenders serving sentences in federal prisons, only about 7% of federal inmates are incarcerated for “violent” offenses like homicide, aggravated assault, and kidnapping and robbery with majority incarcerated for nonviolent offenses.  Out of  the 1.35  million  people  in state prisons,  the Bureau  of  Justice  Statistics reports that only 718,000 people were serving  time  for a  violent  offense.  Is it any wonder that the wallets of taxpayers are nearly empty by a criminal system which so indiscriminately incarcerates?

Still, to bring the United States to a prison incarceration rate equal to that of European nations — or to our own rate in the early 1970s — we would have to slash our incarceration rate from 623 per every 100,000 adults to about 150 per 100,000. That would be a reduction of approximately 80 percent.  To start towards that goal, we need to shorten sentence lengths; make it easier for prisoners to win extended supervision/parole; deciding that probation or community service are more appropriate consequences than prison time for entire classes of crimes; diverting more suspects to mental illness programs or addiction treatment; and even redefining what offenses are considered violent in the first place.