Law

Six Charts that Explain Why Our Prison System Is So Insane

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When Attorney General Eric Holder announced last week that he would be issuing instructions to federal prosecutors that could result in fewer mandatory minimum sentences for low-level drug offenders, it wasn't the risky policy change it would have been only a few years ago. With crime on a two-decade-long downward arc, politicians and policymakers don't have to worry as much as they used to about being tagged as "soft on crime." In fact, there's so much toughness already built into our criminal-justice system that unless we start lopping off thieves' hands, it couldn't get much tougher. Though the change Holder announced would affect only those convicted of federal crimes, it has brought renewed attention to our enormous prison population. And just how enormous is it? What follows are the details. In 1992, there were 1.3 million inmates in America's prisons and jails; by two decades later, a million more had been added (the data in this article are taken from the Bureau of Justice...

When Everyone Wanted to Be "Tough on Crime"

The cover of Time, February 7, 1994.
*/ Yesterday, Attorney General Eric Holder announced some policy changes meant to reduce the number of drug offenders subject to mandatory minimum sentences. Across the political spectrum, people have come to view mandatory minimums as a disaster from almost any standpoint, and as some people have pointed out, mandatory minimums were originally a Democratic idea. Those of you who are too young to remember the early 1990s might not appreciate the raw terror that gripped Democrats in those days. People regularly lost elections when their opponent's opposition researchers found some obscure vote that could be twisted into a direct mail piece saying, "Congressman Smith voted to let violent criminals out of jail—so they could rape and murder their way through our community. Is that the kind of man we want in Washington?" As it happens, at the time I was working for a political-consulting firm that created some of those mail pieces. Our clients were all Democrats, and we produced crime...

Bloomberg's Stop-And-Frisk Program Is Unconstitutional

AP Photo/Haraz N. Ghanbari
AP Photo/Seth Wenig I n a major victory for civil rights and civil liberties, a United States District Court Judge has held that the New York City Police Department's (NYPD) stop-and-frisk policies are unconstitutional. Judge Shira Scheindlin's opinion justifying the ruling is a tour de force. Carefully assessing both systematic evidence and the cases of individual litigants, Judge Scheindlin leaves no serious doubt that the NYPD's policies are inconsistent with the fundamental rights guaranteed by the Constitution. Under current Fourth Amendment law, not all warrantless searches of people in public violate the Constitution. In the landmark 1968 case Terry v. Ohio , Chief Justice Earl Warren affirmed that "stop-and-frisk" searches are indeed "searches" covered by the Fourth Amendment. As he noted in one passage in his ruling—part of which was used as an epigram by Judge Scheindlin—"it is simply fantastic to urge that such a procedure performed in public by a policeman while the...

Just How Bad Will the Florida Voter Purge Be?

Flickr/lakelandlocal and whiteafrican
Flickr/Erik Hersman I t’s no surprise that Florida’s decision to once again try to scrub the voter rolls of noncitizens has prompted an outcry from voting-rights advocates and local elections administrators. While no names have yet been removed, letters went out to elections supervisors last week about the new effort. Republican Secretary of State Ken Detzner has begun creating a new list of suspect voters. Famous for its poorly run elections, the state is picking up where it left off last year, when Detzner announced that he had a list of more than 180,000 voters who shouldn’t have been on the rolls. The list—90 percent of whose voters were nonwhite—turned out (surprise!) to be based on faulty and outdated information. The previous push also happened fewer than 90 days before Florida’s statewide primaries, leaving little time to alert the voters whose registration was being questioned and allow them to bring documentation to show they were eligible to vote. Elections supervisors in...

Against Douthat on Abortion Restrictions, Round Two

AP Photo/Tony Gutierrez
Ross Douthat has a thoughtful response to two critiques—one from me at the Prospect and another from Katha Pollitt at The Nation —of his recent column on European abortion policy. It would help to clarify some of the empirical issues that are central to our disagreement. I'll leave it to Pollitt to address the dispute about the content of Texas's new abortion restrictions and focus on the points Douthat claims that we didn't respond to. I'll handle them individually: This variation, in turn, gives us more data on the original question that my column asked: What happens to a modern society when abortion is restricted? And I don’t think that either Pollitt or Lemieux offered much of a rebuttal to my suggestion that Europe’s variations and their apparent consequences pose a problem for two commonplace pro-choice assumptions: That restrictions on abortion don’t actually reduce abortion rates (which appears to be true in neither the U.S. nor in Europe )... To be clear, I have never...

SCOTUS's Meaningless Death Penalty Rules

The Eighth Amendment forbids the execution of the mentally ill. So why did we kill John Errol Ferguson?

AP Images/Amber Hunt
Monday evening, the state of Florida executed John Errol Ferguson. This was not an act of injustice because Ferguson was innocent—he brutally killed eight people. It was an act of injustice because Ferguson was mentally ill. The Eighth Amendment forbids his execution. In 2008, the Supreme Court held that a person cannot be executed if he or she is insane at the time of his or her execution. To the extent that the term has meaning, it's hard to imagine that it doesn't apply to Ferguson, who experts have testified has a "genuine belief" that he is the "prince of God" and has the power to control the sun. Stephanie Mencimer of Mother Jones details Ferguson's history of mental illness: Ferguson's story, and long-documented record of mental illness, starts back in 1965, when records show Ferguson was suffering from hallucinations. In 1971, he was committed to a state mental hospital after being diagnosed as a paranoid schizophrenic. For the next several years, court-appointed doctors...

Sex Workers vs. Spitzer

The former "Love Guv" is back in the public eye and calling himself a feminist, but the anti-prostitution measures he signed into law make life more dangerous for women in the sex trade. 

AP Images/Seth Wenig
AP Images/Seth Wenig Y es," Eliot Spitzer told host Chris Hayes on MSNBC , he is a feminist. Hayes had just played him a clip in which Sonia Ossorio, the National Organization for Women's (NOW) New York City chapter president, denounced him for paying for sex. "Do we want an elected official," Ossorio asked, who has "participated in sustaining an industry that we all know has a long history of exploiting women and girls?" Spitzer countered that, as governor, he passed a tough anti-sex-trafficking law (never mind that he broke part of it). It was a conflict you rarely see in public: two people competing for feminist cred over sex work—Spitzer the prosecutor (and repentant customer), Ossorio the spokeswoman (that sex workers never asked for). As is often the case, their sex trade bona fides don't extend to actually having done sex work, but in using sex workers to make a political point. What they missed was that they were shouting from the same side of the stage: Both NOW's Ossorio and...

Will the Department of Justice Find Zimmerman Guilty?

AP Photo/Gerald Herbert
AP Photo/Alex Menendez S ince the end of the George Zimmerman trial, many of those dismayed by the not guilty verdict have pushed for the Department of Justice to press federal civil-rights charges against Trayvon Martin’s killer. Given the strong possibility that race played a role both in Zimmerman's decision to follow the unarmed teenager and in the jury’s verdict, it seems plausible that federal intervention might be warranted. Indeed, soon after the verdict was read in mid-July, Attorney General Eric Holder launched an inquiry into whether civil-rights charges should be filed against Zimmerman. But unless the investigation uncovers evidence that was not publicly available at the time of the trial, it is almost certain that the federal government will decline to prosecute Zimmerman. The first barrier to bringing civil-rights charges against Zimmerman is that he is not a state actor. Since Reconstruction, the Supreme Court has generally interpreted the Fourteenth Amendment as...

Big Pharma's Private War on Drugs

Pharmacy robberies have spiked in large part thanks to illegal demand for OxyContin. A look inside the drugmaker's efforts to protect its product and the pharmacists at the front lines.

AP Images/Graeme Roy
AP Images/Graeme Roy O n a Wednesday afternoon this spring, with overcast skies and gas-slicked puddles on Utopia Parkway, some two hundred pharmacists gathered on the fourth floor of St. John’s University in Jamaica, Queens, for the Fifty-Fourth Annual Dr. Andrew J. Bartilucci Pharmacy Congress. The plainclothes professionals sat around tables draped with red tablecloths, sipping plastic cups of coffee and occasionally glancing at their phones. At approximately two o’clock that afternoon, John P. Gilbride, Caucasian male, five foot six, medium build, clean-shaven, wearing a dark suit and glasses, entered a rear door of the room carrying a leather satchel. He stood with his head down before walking to the lectern and opening a PowerPoint presentation. Four massive bulls-eyes were splayed out on the conference room walls. “Pharmacy robberies and burglaries are taking place across the country at an alarming rate,” he said. “Do you talk about it? Do you prepare for it? We all had fire...

On Abortion, a Tale of Two Countries

Texas state senator Wendy Davis, whose unsuccessful attempt to stop a restrictive abortion law drew national attention. (Flickr/Texas Tribune/Todd Wiseman)
Conservatives may be in retreat on many different fronts these days, but in one area, they're having smashing success: restricting the ability of women—particularly non-wealthy women—from accessing abortion services. And they're doing it with a new tool: the 20-week abortion ban, offered as cover for a raft of restrictions that aren't about stopping later-term abortions but about stopping all abortions. They're succeeding not because of some change in Americans' views on the subject, but because of the exercise of raw political power. As you may have heard, opinions on abortion, unlike those on many other subjects, have been remarkably stable for decades. But that stability masks some stark differences on abortion, differences that create just enough space for Republicans in parts of the country to make abortion all but illegal. Yesterday the Pew Research Center came out with a new poll , showing some rather dramatic gaps by region on what people think about abortion. Check out this...

Fighting Florida's School-to-Prison Pipeline

Protesters occupying the Florida Capitol in memory of Trayvon Martin want to change school policies that disproportionately suspend black students and often end in arrest.

AP Images/Phil Sears
AP Images/Phil Sears Last week, Donnell Regusters heard from a co-worker that dozens of young people were occupying the Florida Capitol, rallying around the Trayvon Martin verdict, calling for the repeal of the state’s stand-your-ground law, and demanding an end to what reformers call the “school-to-prison pipeline,” so he decided to head South. “It wasn’t even up for debate,” he says. Regusters, an organizer working to reduce suspensions and school-based arrests in Philadelphia, got together a group of young Philly residents, hopped on a bus, and went down the East Coast, picking up students in Baltimore and Washington, D.C., along the way. The night after Regusters’s crew joined the protest, then going into its tenth day, national news coverage heated up : Singer and civil-rights activist Harry Belafonte, a funder of civil-rights actions in the 1960s, made an appearance in Tallahassee. Seeing Belafonte speak in person, Regusters says, “was insanely powerful.” That Friday evening,...

Pot vs. Booze: The Battle Begins

Young drug users, fresh from rampaging through their neighborhood.
Here in Washington, our NPR station airs a program on Sunday nights featuring old-time radio dramas like Gunsmoke and Yours Truly, Johnny Dollar ("The transcribed adventures of the man with the action-packed expense account, America's fabulous freelance insurance investigator!"). A week or two ago they featured an episode of Dragnet in which Los Angeles is beset with a wave of juvenile delinquency. Formerly well-behaved teens start running wild, beating people up, smashing store windows, and creating general violent mayhem. Not only that, these kids commit their crimes in front of local merchants and citizens who know their names and their families—the teens are so crazed, they don't even care if they get caught. Sergeant Friday's suspicions are quickly confirmed, and the culprit is identified. The teens are caught in the grip of … marijuana! Back here in 2013, the Brickyard 400, a NASCAR race, was this weekend in Indianapolis, and the Marijuana Policy Project, a legalization advocacy...

Why the Courts Matter to LBGT Rights

AP Images/Elaine Thompson
The eminent legal scholar and federal judge Richard Posner has a self-described "revisionist" piece on litigation and same-sex marriage in The New Republic . Since it is partly a review of Michael Klarman's From the Closet to the Altar , much of what I have to say about Posner's piece is contained in my review of the Klarman book , and I won't repeat all of those arguments in the same detail here. But Posner's piece is instructive because it embodies some fallacious assumptions about institutional change in American politics that cause many scholars to misundertand the role litigation can play in social reform. What's most telling in Posner's review for me is this: The books are scholarly and well written, but deficient in payoff. They are basically just narratives of the history of homosexual marriage in the United States. I don't think this is right. The argument in Klarman's book is subtle—in part because he started off, like Posner, believing in t he conventional backlash thesis...

A Guide to Anti-Choice Concern Trolling

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If you're a supporter of reproductive rights in the United States, you're forced to endure various forms of concern trolling. The centrist form, perfected by Slate 's Will Saletan, exhorts supporters of abortion rights to concede that abortions are icky and that the good faith of people who support criminalizing abortion must be conceded even when their arguments are a moral, political, and legal shambles . While outright opponents of abortion rights are certainly willing to use these techniques, they have innovations of their own. The concern-troll-in-chief for opponents of reproductive rights is Ross Douthat of The New York Times . Last weekend's manifestation is a particularly good example, both because the arguments are relatively sophisticated and because Douthat is frequently generous enough to provide the material that refutes his own arguments. So, as a public service, I use Douthat's latest column to provide a handy guide to the pillars of anti-choice concern trolling, and,...

Teacher, May I Plead the Fifth?

flickr/SarahSandri
flickr/amitbronstein I n January 2008, a school resource officer —a policeman assigned to a school — named David Pritchett brought eight-year-old Anthony J. Hunt into the reading lab at Shields Elementary School in Lewes, Delaware. He planned to question him about a missing dollar, stolen from an autistic student on the bus that morning. Pritchett was almost certain that the student already waiting in the room, a fifth-grader named AB in court papers, had stolen it. Pritchett had trouble getting him to confess. After sitting Hunt down and closing the door, Pritchett began his interrogation. He warned the boys against lying and told them about Stevenson House, a youth detention center where “people are mean” and where Hunt would not be able to see his siblings. Hunt began to cry, after which AB confessed to stealing the dollar. Two years later, Hunt’s mother sued the state, and three years after that the Delaware Supreme Court ruled in her son’s favor, agreeing that Hunt’s Fourth...

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