Posted on

Why Getting Tough Is Weak


Deprecated: Function get_magic_quotes_gpc() is deprecated in /hermes/bosnacweb08/bosnacweb08bf/b1577/ipg.rifuturecom/RIFutureNew/wp-includes/formatting.php on line 4387

Deprecated: Function get_magic_quotes_gpc() is deprecated in /hermes/bosnacweb08/bosnacweb08bf/b1577/ipg.rifuturecom/RIFutureNew/wp-includes/formatting.php on line 4387

This week the Senate Judiciary voted to eliminate Good Time for people convicted of murder or serious sex offenses (1st degree child molestation, 2nd degree child molestation, kidnapping of a minor, and 1st degree sexual assault).  (Good Time is the 10 days per month a prisoner receives for good conduct.  In a month where the prisoner gets in trouble, they get no Good TIme, and will get 1-3 months worth of Good Time subtracted from their total.)  At the same time, as blogged by Tom Sgouros, A.G. Kilmartin let Wall Street off the hook on the foreclosure crisis.  The Attorney General also has a “White Collar Crime” proposed bill that isn’t about white collar crime- it is about corrupt public officials exclusively.  He has absolutely no response to the financial crisis that is rampant with actual criminal activity.

It has long been accepted that White Collar crime is more serious than street crime.  Even the political debates, which focus on fear and leave rationality behind, don’t have space to waste on street crime- but the Bailout, foreclosure crimes, and mass healthcare fraud make the cut.  Yet when it comes to taking action and making the world a safe and secure place, we come back to the tried-and-true.

The “Woodmansee” legislation will put more pressure on the parole board to either release someone, or serve a long and costly incarceration.  As prisoners age they get more expensive.  Rhode Island will find out.  Still unwilling to do something as little as make marijuana possession a civil penalty, the General Assembly’s thirst for prisoners may never cease.  Even as the state crumbles around them.  It is understandable to want to kill those who have committed terrible crimes, or in lieu of that, lock them up forever.  Two factors need to be factored into that impulse: money and morality.

Plea bargains do as much, if not more, for the taxpayers than they do for the accused.  It is no small thing to plead guilty to a serious offense, to give up any slim hope of exoneration, or being convicted of a lesser charge.  Pleading guilty means admitting to the facts laid out by the Attorney General, and these are not agreed upon in the bargain.  They may be inaccurate, and they may come back to haunt someone who is looking for work years later.  Pleading guilty also means saving the taxpayers the cost of a trial.  Lawyers on both sides should be spending dozens of hours in preparation for a trial.  Their investigators would be spending days in preparation.  Expert witnesses would be found, and paid.  Although the Attorney General’s office and Public Defender are salaried, rather than hourly, enough trials would bring the entire system to a halt.  More staff would be hired at a few more million per year.  And to avoid this, the Attorney General offers a seemingly lighter sentence than would be had from a judge angry at the audacity of taking it to trial.

Judging by the Attorney General’s attitude towards prisoners, that they all should serve as long a sentence as legally possible (and in some cases, such as Woodmansee’s, spitting in the law’s face)… it is impossible to see any space for rehabilitation in the Attorney General worldview.  This is not particular to him.  A.G. Lynch, and most A.G.’s around the country, also have lobbyists who fight against any relaxation in the street crime laws, and also actively pursue increases in these laws.  Thus, they should not be taken seriously when engaging in, or talking about, reentry or rehabilitation.

Eliminating Good Time based on someone’s crime reinforces the notion that someone will always be the sum of a single day.  That they can not change.  That they are their crime.  This analysis is rampant throughout the criminal justice system, and is not very useful in assessing rehabilitative needs.  As someone who has been out for nearly seven years from a second degree murder conviction, I would still be on parole if not for Good Time.  And that is assuming the parole board would have looked as favorably on my situation, if my release date were September, 2013.

I’ve been asked recently if the Woodmansee Law, which will surely go through (yet not affect Michael Woodmansee, of course) will be applied retroactively.  It is not uncommon for states to feel that court decisions, including those ruled by the U.S. Supreme Court, do not bind them.  So it is possible that RI will apply this rule to several hundred prisoners at the ACI. It will not hold up in court however, as prisoners have a “liberty interest” in Good Time credits; once given, they cannot be arbitrarily revoked.

Rhode Island has not hit rock bottom on “Getting Tough” on street crime.  It may take more budget, more staff, more prisons.  There is some debate of whether anything political can change course without a cataclysmic event.  Whereas a minority of the General Assembly do bring some wisdom to the table rather than a “base mobilizing” approach to extremist positions, we shall see.

Posted on

One More Step Toward Prop 8’s Doom


Deprecated: Function get_magic_quotes_gpc() is deprecated in /hermes/bosnacweb08/bosnacweb08bf/b1577/ipg.rifuturecom/RIFutureNew/wp-includes/formatting.php on line 4387

Deprecated: Function get_magic_quotes_gpc() is deprecated in /hermes/bosnacweb08/bosnacweb08bf/b1577/ipg.rifuturecom/RIFutureNew/wp-includes/formatting.php on line 4387

In the summer of 2010, when I skimmed Judge Walker’s ruling on Prop 8, I said, “It’s all over but the crying.” The 9th Circuit’s decision on February 7, 2012 was another inevitable move in the legal end-game of marriage equality.

I also predicted that the US Supreme Court would decline to hear the case. I’m sticking to my guns. Here’s why…

Walker’s Opinion Mostly Not an Opinion

The bulk of Walker’s opinion is not an opinion at all; it consists of findings of fact. And they are crushing. In order for a law to treat different classes of people differently, the legislating body must demonstrate a compelling interest in doing so. In this case, the basic argument that “traditional marriage” should be upheld is based primarily on religious concepts that have no standing in a court of law. By the “traditional” reasoning, segregation should have been allowed to continue; it’s the way it had always been in the South.

Similarly, the argument that homosexuality is a personal choice also had no evidentiary support. Nor did the assertion that children are better off with opposite-sex parents.

In fact, nothing that the defendants brought to the table passed muster. It was a rout.

The Juriprudence is Clear

Many, many cases along these basic lines have been heard in the US Federal Courts, producing a wealth of precedents on which Walker could base his ruling. The main precedent here is Brown vs Board of Education, which ruled that “separate but equal is inherently unequal”.

Brown had overturned Plessy vs Ferguson, a late 19th century decision that allowed for segregation so long as states provided equal facilities. Brown found that the act of separation invariably produced unequal results. The bar for creating distinct legal classes is exceptionally high.

I should note that the dissenter in the 9th Circuit’s decision did say, “The optimal parenting rationale could conceivably be a legitimate governmental interest”. This argument was clearly refuted in Walker’s findings of facts and, while I haven’t read the dissent, it would be a pretty big deal if the appellate court were to overrule a finding of fact.

It’s all in the language. “Could conceivably…” Not a particularly ringing endorsement. It’s like he needed to throw the anti-equality side a bone.

Walker’s Sexuality Not an Issue

The 9th Circuit also found nothing in the argument that Walker’s sexuality had biased his opinion. That is such a legal loser that it’s just laughable. By that logic, nobody could have ruled on Brown vs Board because they were all either white or black!

Like the dissent’s weak tea with the optimal parenting line, this is a sign of increasing desperation from the anti-equality camp. Here’s why they’re desperate…

US Supreme Court Won’t Hear This Case

This is actually an easy call, because it’s a no-win situation for the court. If they take this case, they have two basic options, 1) uphold marriage equality with a Federal precedent that will instantly obsolete all other state efforts in to ban same-sex marriages or 2) be the court that overturned Brown vs Board of Education. Neither of those two things will occur.

Despite their protestations to the contrary, this is a spectacularly political and activist court. The conservative forces are out to put their stamp on the jurisprudence and pull the court back from what they see as an overreaching authority. If the Scalito brothers thought for one hot second that they could uphold this blatantly unconstitutional ban without overturning Brown, they would. But they can’t, and they know it.

And they’ll be damned if they’re going to put their seal of approval on marriage equality. They’ll be happy to watch years of legal shenanigans as state after state goes through this same process with this same result. Perhaps they’re hoping that other facts will be found or some new legal argument will be invented to demonstrate a compelling governmental interest in creating this class of citizens with limited rights. That also is not going to happen.

The most likely outcome is that the court will refuse to hear the case. It will sting the anti-equality camp, no doubt, but it will leave them to fight another day. I suppose it’s possible that the court will use some obscure option to hear the case without having to rule or something like that. It seems virtually impossible that this US Supreme Court will rule on this case.

So cry all you want, Righty. It’s over.