When Legislators Flout the Law

First a question.  Do you think that part of the oath that a legislator (federal or state) takes upon being sworn into office includes “upholding the law?”  The answer, shockingly, is no.  Congressmen, for example, swear to uphold the constitution, but there’s nothing about upholding the law.  Neither is upholding the law part of their defined responsibilities.

I guess the reason is that all citizens are supposed to obey and uphold the law, even if they disagree with it.  So legislators have no heightened responsibility to uphold the law.

Let’s go further with this.  Should legislators be expected to uphold the spirit of the law ... that is, not act in such a way that clearly flouts the intent of the law?  The average citizen certainly does not have this responsibility.  If there’s a way around the law, it’s a citizen’s time-honored right to take it.

I would argue, however, that it is a legislator’s heightened responsibility not just to uphold the law ... the letter of it ... but to uphold the spirit of the law.  Let me discuss two recent examples of what happens when they don’t.

In 2007, after a scandal involving junkets payed for by lobbyists, Congress passed a law prohibiting lobbyists from giving Congressmen gifts of just about any value.  The offending junkets were taken by Congressmen, typically to resort locations, where they would play and talk with the sponsoring lobbyists, obviously with the intent of influencing the Congressmen with regard to legislation or regulation that affected the interests of the lobbyists.

So what did lobbyists and their Congressional friends do?  They came up with a way to achieve the same end but not violate the letter of the law.  Junkets are now funded by PACs controlled by the Congressmen which are in turn funded by money collected from lobbyists or the corporations they represent.  Since the lobbyists are not paying for the junkets directly, there is no violation of the law!

A recent article in The New York Times documents how Congressmen, mostly but not all Republican, flout the intent of this law.   Should Congressmen be able to legally do this?  Should they at least be subject to an ethics violation?  When there is knowing violation of the intent of the law, I think the answer to both should be, yes, but certainly at least to the latter.

The other instance involves the response of various states to a series of recent decisions of the U.S. Supreme Court that limit the use of life sentences without parole for juveniles.  The underlying reason for these decisions is that children, even those who commit murder, are often less culpable than adults and deserve a chance at redemption.  

But states including Florida, Louisiana, Illinois, and Pennsylvania have gotten around the spirit and intent of these decisions either by piling on sentences that amount to life without parole or refusing to apply the ruling retroactively to juveniles who are currently serving life without parole.  Even when some states have responded with rehearings on sentencing, the new sentences imposed have been harsh (in the Florida example cited, 50 years or more) and against the spirit of the decisions. 

It is a sad statement regarding the rule of law in our democracy that those elected to pass and, one would assume, uphold the laws flout their intent so brazenly.  

Ironically, the proponents of harsh treatment of juvenile criminals are typically conservative Republicans.  They are adamant that criminals must pay the price and that they should not be coddled, regardless their age.  And yet when it comes to their own activities, they have no problem in flouting the intent of the law while obeying the letter of the law.

It may be the American way, but it is a bad way.

Prisons As Monastery Not Dungeon

In my previous post, “Rethinking Criminal Justice in a Civilized Society,” I argued that if a crime does not warrant the death penalty, then rehabilitation should be the predominant motivator in sentencing and its execution, not retribution, not punishment.

Prisons today are merely modern-day dungeons with a prettier face.  No longer do inmates have to fight off rats in dank, dark cells.  They receive decent meals, are provided beds (assuming the prison is not overcrowded), are allowed visitors, get some minimum of exercise and daylight, etc.  Some education is often available.

But the dominant policy is still punishment.  Prisons are a spiritual dead zone.  Except for insuring order, inmates are left pretty much to their own devices; they are provided no direction in changing their lives.  And so despite the fact that they are confined and watched, criminal conduct and gangs flourish in prisons.  They are a breeding ground for a more committed, smarter, criminal.  As a result, more than two-thirds of released inmates commit new crimes, often more serious and violent, within three years of leaving prison.

Is this really what our society expects from our criminal justice system?   There are two reasons why people support the punishment model.  First, it feels right ... the old “eye for eye” perspective.  But I think most people support it to improve safety.  They understand that most prisoners return to their communities within a few years, and people believe that punishment reduces the likelihood that they will commit more crimes after being released from prison.  Also, the theory is that it will deter others from committing crimes to begin with.  But our experience shows that our current prison philosophy secures neither end.

Our society’s answer to this problem has been to increase the severity of prison sentences, even for the most minor of crimes.  But that hasn’t worked either.  All it has done is create even more hardened criminals at an incredible cost to society (both regarding the cost of housing inmates as well as the cost of a continuing career of crime).

No , the answer lies elsewhere ... in the concept of rehabilitation.  Unfortunately, the concept of rehabilitation has been pretty much discredited because it’s just been given lip service, it has never really been given an opportunity to work.  Rehabilitation has to be the guiding principle; it can’t be a side effort in the midst of a brutalizing environment.  And then you have the rants of the right wing who argue against “coddling” criminals.  

In a series of pieces arguing for more emphasis on rehabilitation in The New York Times, the case was made for providing all the therapy needed and all the education desired, preferably within a “locked, safe and secure home-like residential community.”  

While I agree on the need for and the benefit of more therapy of all types and education, I believe that for most inmates, certainly for the more hardened ones, given the nature of their environmental backgrounds, a far more structured environment is necessary in order to ingrain in them new patterns of thought and behavior.  And so I would advocate a setting more patterned after the monastic experience, replete with both a regimented daily schedule and spiritual lessons and meditation.  A repurposing of our existing prison structures.

Why?  For much the same reason that boot camp is necessary to turn recruits into soldiers.  Most inmates, like most individuals, have grown up in very undisciplined circumstances. Although life does not require the discipline of the military or a monastery, discipline in the face of all the temptations and assaults of our society would be very helpful in enabling released inmates to resist falling back into familiar behaviors.

And because most inmates, like most individuals, have grown up in an atmosphere that has created a feeling of insecurity and a negative sense of self, a non-denominational spiritual program including meditation would be very helpful.  Inmates need to develop a new way of relating to themselves and to those around them, both family and the larger society.  

Above all they need to develop faith in themselves, and that can only come from a more robust spiritual life, together with education and various forms of therapy.  As a Buddhist, I would advocate a program based on Buddhist teaching as it is non-denominational and has been shown in numerous prison settings to be very effective in helping inmates (granted that in those cases the inmates self-selected the program).

The question needs to be put to the public:  “Is your primary concern regarding the functioning of the criminal justice system one of increasing personal safety?”   If the answer is overwhelmingly yes, then the future direction of prison/sentencing policy should be clear.  Rehabilitation needs to be the dominant goal of prison policy.

We’ve built all these prisons; we confine all these people; let’s make better use of that opportunity for the benefit of the public as well as the inmates.

Rethinking Criminal Justice in a Civilized Society

When someone is convicted of a crime in our society, the operative focus in sentencing is typically punishment/retribution and that focus is carried out within the prison setting.  The one slight exception to this regards the death penalty.  Many states no longer impose the death penalty regardless of the severity of the crime,

In a recent New Yorker piece, Jeffrey Toobin ends by declaring the death penalty  "an absurdity in a civilized society." That "no technology can render that process any less grotesque."  And thus he argues for the abolition of the death penalty.

While I am a card-carrying, certified Liberal, I beg to differ with Mr. Toobin and those who follow his thinking.  I believe that in any society, even the most civilized (and I question whether ours qualifies as that, but that's another matter), there is a proper place for the death penalty, carefully deliberated and administered as humanely as possible.

There are some acts that are so cruel, so inhumane, done with such total disregard for the value of human life, that there is no appropriate penalty other than the death penalty.  Not as a deterrent to such acts in the future, but because society needs to say that some acts are so beyond the pale that they deserve the ultimate penalty, death.  That is part of what makes a society civilized.  

While much attention is placed on the issue of the death penalty in our civilized society, very little attention is given to the nature of prison time served by a typical convict and how that meshes with the concept of a civilized society.  The typical prison is a dead zone where people languish in boredom and where the disposition to commit crime is actually increased with the result that we have a very high rate of recidivism, with the released person often committing even more serious crimes.

If the proper context for the debate on punishment is a civilized society, and I think that is the correct context, then I would argue that if a crime does not warrant the death penalty, then rehabilitation should be the predominant motivator, not retribution, not punishment.  That is another part of what defines a society as civilized, and we are clearly totally lacking in that.  

Our society should want to make the criminal whole in every sense of the word so that he or she not only does not commit crime when he is released but becomes a benefit to his immediate family and society.  We are all, after all, God’s children; if someone goes astray it is not because there is something inherently within him or her that is bad, but because he has been damaged growing up by the contact, the experiences, he has had with the larger culture and often even his immediate family.  This does not absolve someone of responsibility, but it should inform how the system, how a civilized society, interacts with someone who has committed a crime.

Our current system harms the individual and harms society.  It is a lose-lose situation.  The goal of rehabilitation is not only civilized, but it is in society’s best interest.  And it is possible.