Justice Kennedy asks us to rethink U.S. prisons broadly

U.S. Supreme Court Justice Kennedy not only wants the Court to hear a case as soon as possible on the constitutionality of solitary confinement, in the aftermath of the suicide of Kalief Browder, but he wants lawyers to start thinking more seriously about the prison system in general when they’re putting people there:

But Kennedy’s concurrence also seemed to be directed toward the American legal community, whose disengagement from prison issues he has previously lamented. “In law school, I never heard about corrections,” he told a congressional hearing on March 23, two weeks after the Davis oral arguments. “Lawyers are fascinated with the guilt/innocence adjudication process. Once [it] is over, we have no interest in corrections. Doctors and psychiatrists know more about the corrections system than we do.”

Although no one realized it at the time, his brief soliloquy on the crisis of “total incarceration” in March was a preview of today’s concurrence. “Too often, discussion in the legal academy and among practitioners concentrates simply on the adjudication of guilt or innocence,” Kennedy wrote. “Too easily ignored is the question is the question of what comes next. Prisoners are shut away—out of sight, out of mind.” Consideration of these issues, he stated, “is needed.”

I’ve been thinking about this (the theme Kennedy highlights in the quotes above) a lot while watching legal dramas. The lawyers on both sides plea-bargain in abstractions with no real sense of what they might be condemning the accused to, even for a few years. I don’t think it’s much different in the real world. Even a year or two in general population, let alone solitary confinement, is a pretty strong punishment, and I suspect many lawyers don’t think too hard about that.

Which is not to say that all prison sentences (or even most) are somehow inherently unjust, but rather that we need serious prison reform to ensure that prisons are actually constructively “correcting” and proportionally punishing criminal actions, without being excessive or abusive. We’ve got a hell of a long road ahead of us considering our society still thinks “prison rape” is a hilarious subject, not a serious problem, or that abuses by guards are irrelevant even when someone is serving time for a very minor offense because prison should be as harsh as possible.

We have a very destructive system that is killing people and destroying lives permanently, even for minor or non-violent crimes, without any consideration toward rehabilitation or even true justice.

The iron fist of the American prosecutor

The Economist has published a very comprehensive article on “How prosecutors came to dominate the criminal-justice system” in the United States. It’s absolutely worth reading. It looks at mandatory minimums, plea bargaining under threat of insanely huge sentences, “cooperating witnesses” (who have a strong self-interest incentive to lie in court to help prosecutors), threatening to indict witnesses who help the defense, prosecutors seeking celebrity and elected office, illegal withholding of evidence to the defense, excessive caseloads in the court system discouraging trials in favor of pressuring pleas, and more.

Ending solitary confinement

The previous Colorado chief of Corrections was shot and killed in his own home by a former inmate who had spent years confined in solitary confinement (a punishment which is pretty well known at this point to make most people very mentally unstable), after the latter man was released from prison straight out of solitary when his sentence ended.

The victim, ironically, had expressed concern about the state’s excessive use of such treatment (and in particular the habit of releasing people directly without transition like that) and had cut the number of solitary inmates in half before his death.

To me it has long seemed that solitary confinement is probably one of the most heinous practices in the American prison system, and one that should probably be banned at least for general use under the 8th Amendment’s prohibition on “cruel and unusual punishment.” It must be particularly traumatic and damaging for inmates who are serving less than a life sentence and are eventually supposed to be released back into ordinary society.

The new executive director of Corrections, Rick Raemisch, is so opposed to the practice that he is using the job to campaign against it. As he said, “Everything you know about treating human beings, that’s not the way to do it.”

Raemisch even spent 20 hours in solitary himself in January to protest the practice. It’s part of his broader agenda to shake up the state’s correctional system so it might actually rehabilitate people rather than worsening the problem.

All of it calls to mind a biting satirical article from The Onion not long ago, headlined: “15 Years In Environment Of Constant Fear Somehow Fails To Rehabilitate Prisoner.”

Europe and the American death penalty

death-penaltyTypically, the only countries that try to tell the United States what to do are in the company of North Korea and Venezuela.

Europe definitely doesn’t make a habit of condemning the policies of the U.S. government and certainly not the policies of specific state governments. Part of that is that it would be unlikely to accomplish much. Part of it is a recognition that they would not like the U.S., a peer nation among developed democracies, telling them what to do at home, either.

They may disagree privately or shake their heads, but it’s rare for European leaders to say anything in an official capacity or to do anything substantive about it. This may be changing a bit in light of the NSA scandals, but there’s also actually already been one fairly quiet exception: the U.S. death penalty. They’ve been very firm on the issue and are increasingly ramping up official activism to end it.
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Will “smarter” cars start snitching on us?

After a Ford exec in a panel talk raised a (supposedly) hypothetical scenario whereby the company could collect live driving data like speed and relative location from embedded GPS and other services linked back to headquarters by satellite, and noted that it would include illegal/dangerous driving behaviors, Eugene Volokh of TVC started thinking through the legal implications of such a world. Here’s an excerpt from the piece:

Ford could technically gather this information, and could use it to prevent injuries. For instance, if GPS data shows that someone is speeding — or the car’s internal data shows that the driver is speeding, or driving in a way suggestive of drunk driving or extreme sleepiness, and the data can then be communicated to some central location — then Ford could notify the police, so the dangerous driver can be stopped. And the possibility of such reports could deter the dangerous driving in the first place.

Ford, then, is putting extremely dangerous devices on the road. It’s clearly foreseeable that those devices will be misused (since they often are misused). Car accidents cause tens of thousands of deaths and many more injuries each year. And Ford has a means of making those dangerous devices that it distributes less dangerous; yet it’s not using them.

Sounds like a lawsuit, no? Manufacturer liability for designs that unreasonably facilitate foreseeable misuse is well-established. And the fact that the misuse may stem from negligence (or even intentional wrongdoing) on the user’s part doesn’t necessarily block liability, so long as the user misconduct is foreseeable. I should note that I’m not wild about these aspects of our tort law system, and think they should likely be trimmed back in various ways; but there is certainly ample legal doctrine out there — whether one likes it or not — potentially supporting liability in such a situation.


The full piece is pretty long and gears gradually toward the technical side, for legal professionals, as it progresses, but the opening sections are for a more general audience. It’s certainly thought-provoking — the idea that companies might be able to use increasingly computerized and data-rich vehicles to monitor driving behavior and report it to the police (or to insurers, or… who knows where it ends).

Might they even make the data signals go two ways so they could control someone’s vehicle to slow them if they’re speeding out of control (or aid the police in controlling it, to stop a high-speed chase for example)? After all, some of these cars already have automated lane-finders and swerve-correctors as well as numerous other safety features. But those are locally-run by the onboard systems. Does the company have an obligation to control or report its vehicles when they’re being used dangerously or illegally? If they don’t, will they be sued? Interesting (and troubling) questions from a brave new world…

Syria, Lebanon: Small reform, big potential impact

kurdistan-map-ciaSometimes the role of government isn’t about the really big things. Sometimes, it’s just about the little things that affect everything else.

Lebanon and Kurdish Syria (a semi-autonomous region) have been making a key reform in one such area: the establishment of civil, non-religious marriage and relationships. The idea, previously banned, finally allows people from two different religious sects to be legally married without one of them having to convert.

In both Lebanon and Syria, religious affiliation is not a personal choice but rather a legal fact included on documents from birth onward. This has contributed to the perpetuation of intense sectarian conflict and tensions for the past century.

Al Jazeera America:

Syrian Kurds Hmaren Sharif and her groom, Rashou Suleiman, signed the country’s first civil marriage contract over the weekend, under new laws administered by the ruling Kurdish Democratic Union Party.
In multi-confessional Syria, where about two-thirds of people are Sunni Muslim and the rest mainly Shia, Christian and Druze, civil marriages between members of different faiths have long been forbidden.

It is unclear if Sharif and Suleiman are themselves from different sects, as the new law does not require participants to disclose that information.

The introduction of civil marriage in Qamishli is seen as a measure to uproot rising sectarianism and undercut the authority of religious leaders over social institutions like marriage, 3arabi Online said.
Saturday’s ceremony, meanwhile, was lauded by civil marriage activists, who have been bolstered by a year of unprecedented progress in a region of the world where sectarian leaders wield much power over personal matters like marriage.

Kholoud Sukkarieh, one half of the first couple to obtain a civil marriage license in neighboring Lebanon, told Al Jazeera she was alerted to news of Syria’s first civil wedding when activist group Civil Marriage in Syria tagged her in posts about it on Facebook. She called the new marriage law “a great step forward.”

“It is so courageous and brave to do such a thing during this sectarian war in Syria,” said Sukkarieh, who had her Sunni sect designation struck from her official identification so that she could marry a Shia in April. She and husband Nidal have since welcomed Lebanon’s first sect-less baby into the world.