Category Archives: Mandatory Minimum Sentences

Is it Possible that More Conservatives are Getting a Clue About Criminal Justice Reform and Even the War on (Some) Drugs?

Up until about Monday of this week, such a question would have made me laugh. As I have increasingly involved myself in criminal justice issues, I have found the Democrats to be slightly more willing to take on the Prison Industrial Complex, mandatory minimum sentences, and decriminalization (if not outright legalization) of marijuana. These Democrats are typically vilified as being “soft on crime” for suggesting alternatives to hard time for non-violent crimes such as the ones I recently wrote about in my movie review for It’s More Expensive to do Nothing.

And no, I’m not talking about Ron Paul/Rand Paul*Gary Johnson, or Republican Liberty Caucus Conservatives here, I’m referring to the traditionally “tough on crime” Social Conservatives like Texas Gov. Rick Perry and former Attorney General Ed Meese who usually take pride in legislating morality. Radley Balko wrote an article at Reason about this new Conservative project called Right on Crime. While I haven’t had the chance to review the website for myself, what Balko has reported about the project is very encouraging: they actually recognize many of the very problems I have been writing about such as the size and makeup of the prison population, recidivism, and the economic and social costs associated with each.

As if this new project wasn’t enough to get my attention, there was this video that first saw yesterday on my Facebook page from something Pat Robertson said:

Did Pat Robertson just come out in favor of decriminalizing marijuana and criticize mandatory minimum sentences? It’s a freaking Christmas miracle!

While I don’t necessarily agree with some of Right on Crime’s and Robertson’s proposed solutions to reforming the criminal justice system, I find it very encouraging that they are at least beginning to recognize the problems associated with the “tough on crime” mentality. Perhaps now Libertarians, Conservatives, and Progressives can actually have a much needed adult conversation about these issues and find some common ground.

That would at least be a start.

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Hope n’ Change: Pardon Edition

Thus far, President Obama has pardoned 4 turkeys and 0 people. Does anyone else have a problem with this?

George Lardner Jr. writing an article for The New York Times entitled “No Country for Second Chances” does:

If by tomorrow [November 23, 2010] he pardons no one but turkeys, President Obama will have the most sluggish record in this area of any American president except George W. Bush. He’ll have outdone George Washington, who granted a pardon after 669 days. And he will also have outlasted Bill Clinton, who took three days longer than Washington to grant his first pardons. If Mr. Obama waits until Christmas Eve, he will make even his immediate predecessor, who waited until Dec. 23, 2002, seem more generous.

Last month, President Obama turned down 605 requests for commutations — from prisoners who wanted their sentences shortened — and 71 for pardons.

Lardner reports that the Obama administration has requested some hope n’ change with regard to clemency recommendation standards but apparently doesn’t want to grant clemency to anyone (other than turkeys) until then.

The article continues:

It’s difficult to understand why the president has been so unwilling to grant any clemency. As someone who has taught constitutional law, he knows that the founders gave him, and him alone, the power “to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” It is likely that he also knows that a disproportionate number of federal prisoners are black, that mandatory sentencing guidelines have left many of them with excessive sentences and that at least a few of them deserve clemency, whether they’ve asked for it or not.

The president has not only the power but also the responsibility to grant clemency when it is warranted. A pardon can help a worthy former prisoner qualify for a job or a license. But mainly it restores the person’s civil rights, including the right to vote.

This puzzles me as well for many of the same reasons. This is one area I thought Obama actually would be a positive force for change but sadly he seems content with the status quo. The status quo being that only politically well connected individuals* or those whose cause for clemency become political causes** in of themselves ever have a realistic chance of success (regardless of merit or lack thereof).

Surly, out of the 4000+ clemency requests, there are at least a few hundred that are worthy of a presidential pardon. Off the top of my head, I can think of one.

Hat tip: The Agitator

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Correcting the so called “Corrections” system

As of today, it should be clear to everyone in this country, that our system for dealing with criminals (I won’t call it a “criminal justice” system since justice has so little to do with it), is utterly broken, beyond any conventional concept of repair.

At this point, again I say, it should be clear we can’t just “fix it”, we need to start over again, with a different concept.

I have a radical idea…. how about this time we start with an HONEST concept… because right now we are anything but honest about what the real function of the “criminal justice” system is; and that dishonesty is what has made all our efforts to date fail miserably.

Today, although we will never admit this to ourselves publicly, there are three things keeping the “Corrections” system going:

1. It’s a jobs program for law enforcement and “corrections” officers, and administrators

2. Non-offending people ARE actually safer when offenders are imprisoned (the problem is, what happens when they get out).

3. We like lots of cops (or at least the IDEA of lots of cops), we want to be “safe”, and we feel that people who do bad should be PUNISHED.

That’s really what it comes down to though, is punishment.

Punishment isn’t SUPPOSED to “help” them. Punishment isn’t supposed to “rehabilitate” them.

The very term “department of corrections” is a hypocritical misnomer.

Americans (and to a large extent most other cultures), put people in prison to punish them, not to “fix” them.

“Correctional system”, “penitentiary”… All high minded hypocritical myths.

The reason “Sheriff Joe” “Americas Toughest Sherrif” is so popular (despite being the worst sort of self aggrandizing, corrupt, civil rights abusing scum) is because he reassures people that he is “punishing the bad guys”; and THAT is honestly what people want.

Eastern State Penitentiary, the first “modern” penitentiary style prison, was deliberately fashioned to resemble monks cells (which is where we got the name for inmate housing units), in the belief that isolation, contemplation, prayer, and penitence (thus the name), would reform criminals into decent men. It was held up as the new “humane” model. In reality it drove prisoners mad and they killed themselves, and each other, in droves.

So long as we refuse to acknowledge the true purpose behind “custodial sentencing” and pretend it has anything to do with the offender coming out better on the other side, we are stuck with what we’ve got (And rapidly getting worse).

We have to stop pretending that punishment does anything but feed our base emotions.

We have to stop pretending that the negative prospect of prison is sufficient to deter criminals from committing crimes. Most criminals by nature have a poor appreciation for consequences, poor impulse control, and an inability to make valid risk/reward calculations.

When you put a criminal away, all you are doing is warehousing him where he can’t commit that crime anymore. That does serve a valid purpose, but it costs a huge amount of money, and doesn’t fix the problem.

The so called “criminal justice” system can no longer serve as a jobs program for law enforcement, lawyers, administrators, and corrections personnel; nor can it simply be warehousing of offenders until we release them to commit their next offense.

So, here it is, really simple; my pie in the sky ideal for how to deal with crime and punishment.

Step 1: drug addiction, possession, use, and sale, must be decriminalized

This has to happen for ANYTHING to have any hope of working. That would eliminate something like 80% of the offenses in higher criminal courts, and drastically reduce prison populations (at least 40%, most likely something more like 80%).

Step 2: We must not only stop, but revert the proliferation of felonies

Right now, you can be convicted of a felony in some states, for as little as selling the wrong kind of fish at the wrong time. We have established a ridiculous number of offenses as “high crimes” (what felonies are intended to be); without any real justification or social purpose, except to inflate those whom the state can claim as convictions, claim higher punitive penalties from, or incarcerate for longer periods of time.

Accordingly, all crimes currently classified as felonies must be reclassified as misdemeanors unless they meet one or more of the following conditions:

1. Physical violence sufficient to cause grievous bodily harm, grievous trauma (such as rape and molestation), or substantial risk of loss of life (or more).

2. Physical or monetary damages equal to or greater than two years income at minimum wage, presuming a 1940 hour work year.

3. Crimes against basic human rights, including terrorism, tampering with courts, deprivation of rights etc…

4. Grave harm to the national security of the united states, including espionage and treason.

5. Criminal negligence, gross indifference, coercion, conspiracy, or fraud sufficient to cause the above.

Step 3: We must completely overhaul our punishment and societal protection model

We must eliminate custodial sentences for non-violent crimes, including felonies, unless those crimes involve:

1. Gross negligence or indifference leading to violent consequences or the loss of life (anything from drunk driving to greater liability issues)

2. Coercion, force or fraud causing damages in excess of five years of minimum wage (because this is effectively slavery for the victim)

3. Special circumstances which are considered “heinous” (more on that later).

We must restore the element of criminal intent into how crimes are charged and sentenced. If there is no intent, then there can be no intentional crime; only crimes of negligence or indifference, which are generally considered far less severe.

In this regard, any action taken while intoxicated or impaired should be considered qualifying, HOWEVER only if criminal damage or injury to others results.

I believe that people should be allowed to drink, swallow or smoke whatever they want, but if their choices cause impairment which then causes damage or injury to others, they should be punished SEVERELY; and crimes involving impairment should be considered intentional for purposes of determining severity.

Also for purposes of determining the severity of an offense, coercion or fraud shall be considered equivalent to force (force being defined as violence, or the threat of violence).

All other criminal offenses should be punished by restitution and compensatory and punitive damages to the victim, compensatory and punitive fines to the state, labor for public benefit, public humiliation, and two years of convict status (which can be reduced by order of a judge only after discharge of all obligations).

Further, on discharge of all other obligations, convicts shall be given a term, of “probation” equal to the length of their existing sentence.

The crimes, sentences, and photographs of all those convicted of criminal offenses should be published in all local newspapers, as well as on local and national web sites; and announced on local television.

All convicts should be required to wear a distinctive article (bracelet, necklace, ankle bracelet etc…) which lists their crime and sentence, and which cannot be covered up while in public.

Convicts must wear this article, until such time as their sentence and obligations have been discharged. At any time, the convict should be legally required to disclose their crime and sentence to anyone who asks; unless doing so would cause danger or disruption.

If a convict is able to earn more than a state mandated minimum wage in their private pursuits, they may continue performing them, and pay restitution and fines directly. If not, then they are directed to work for the state, at a competitive wage for such jobs as they perform, while meeting prevailing employment standards for such a position (i.e. if the only job they qualify for is ditch digger, it’s the only job they can get; and they still have to compete for it with non-convicts).

If the convict is unable to meet basic standards of work, or is unwilling to work, then they will be reduced to menial forced labor at minimum wage. If they refuse this, they will be incarcerated, as a regular inmate, for the term of their sentence.

Restitution, damages, and fines should of course be directly garnished from the convicts wages; but should be considered pre-tax income deductions for tax purposes.

All custodial sentences shall have terms of two, five, ten, twenty five years, or life (or death in states that allow it).

Different charged offenses can be combined consecutively to “stack” sentences; but only if those offenses make up separate criminal acts (if one crime involved 8 different chargeable elements with a 2 year sentence for each, then the convict would receive 8 two year sentences to run concurrently. If he committed the same crime on 8 different occasions, he could receive consecutive sentences, for a total of 16 years incarceration)

There is no parole, however sentences can be reduced (more on that later).

Forcible rape, aggravated sexual assault, sexual molestation, aggravated kidnapping, intentional premeditated or depraved homicide (what would be first degree murder in most jurisdictions), felony murder if the homicide is heinous by itself, any intentional negligent or depraved indifference crime resulting in mass death or mass grievous injury (mass being defined as multiple victims who were not individually targeted, or multiple victims who were unknown to the criminal and whom they had no individual an personal motive to harm), any crime involving tampering with a court or an election, any crime involving the intentional deprivation of an individuals basic human and civil rights (as enumerated in the declaration of independence, and the constitution), torture, espionage, treason; or any attempt to commit those crimes, or conspiracy to commit those crimes; shall all be considered “heinous crimes”.

Heinous crimes should all carry the maximum length of incarceration, and should be eligible for the death penalty in jurisdictions that allow it.

It is important however, that all state and federal laws about the definitions of these crimes must be clarified and harmonized to meet the highest standard of criminal act, and criminal intent (for example, a potentially but not explicitly sexual element to a simple assault – such as public nudity or forced nudity -, would not make it sexual assault. The intent and act must be sexual in nature, and involve sexual contact or acts, or attempted sexual contact or acts. Forcible rape must be limited to actual acts of physical violence, or coercion by threat of violence, resulting in a sexual act).

Oh and yes, I really do believe that voter fraud and election fraud should be punishable by life in prison. So should criminally preventing someone from voting who has the lawful franchise. Any criminal deprivation of rights should be considered as serious as rape or murder.

In addition to their custodial sentence, of course, all penalties that apply to non-custodial sentences would also apply. Restitution, damages, fines and fees, as well as all other conditions of convicts.

Sentences can be reduced, by a judge, on review of the case, and circumstances. A review will be automatically initiated at the time the convict discharges their restitution, damages, and fines, should they do so before the term of their incarceration is completed. Criminals convicted of heinous crimes however, would not be eligible for early release except for humanitarian reasons.

While serving a custodial sentence and incarcerated, unless disabled and unable to do so, the convict will be required to perform productive labor for at least 8 hours a day, five days a week; for which they will be paid at minimum, a base sum equal to the cost of their incarceration (for which they will be charged). They will also accumulate sick leave benefit, and paid vacation days, equivalent to a government employee of the same grade as whatever productive labor they perform.

If the convict is disabled and unable to perform any work, they will be given the same disability status as any disabled individual; and will receive the equivalent of all federal and state disability payments and benefits, to offset the cost of their incarceration.

The convict is to be given the opportunity to voluntarily learn useful job skills, and perform at a useful job at market rates, which can earn them money to pay their fines and restitution.

If the convict has useful skills which can be applied to work that can be performed within the terms of their incarceration without undue risk, this is to be allowed.

The convict is also to be offered the opportunity to work overtime, and earn more money; to be used to pay the cost of their incarceration, their fines and restitution; the balance of which should be the inmates to control as they see fit.

This should not imply the inmate has a right to any job other than basic labor paid at a rate sufficient to cover the cost of their incarceration. Only that the opportunity to seek and perform other employment must be allowed.

If a convict refuses to work, or does not meet minimum standards of work, they are to be restricted to solitary confinement without public exercise, visitation, or communication privileges (excepting legal and spiritual council), and reduced to subsistence ration. Additionally, any work day the convict refuses to work, the cost of their incarceration for that day will be added to their obligations.

Some of this may seem ridiculous (vacation days for convicts?) but it serves an important purpose. The convict should understand, they are performing a job, for pay. They benefit from their own labor, and they have to pay for their own upkeep. If they work harder or more or at a better job, they get ahead; just like everyone else.

This kind of normalization is really the only way to produce people who won’t reoffend when they get out. Get them useful job and life skills they can transfer to the outside world; and get them in the habit of meeting standards of behavior; you’ll see a huge difference.

Any convict caught committing any felony while incarcerated will be subject to immediate extension of their sentence to life in the case of non-violent felonies, or death in the case of violent felonies. Self defense (against ANY crime or attempted crime against them, not just murder) is considered a valid defense against such charges however.

On their release from custody, convicts will be liable to the same penalties and strictures as those who have received non-custodial sentences.

Any further felony committed by any felony convict, whether incarcerated or not, prior to the discharge of any and all obligations (fines, restitution, service or labor), or in the convicts “probation” period will result in an automatic custodial sentence of at least five years; even for offenses that would not normally carry a custodial penalty.

Any violent felony committed prior to the discharge of any and all obligations shall result in an automatic custodial sentence of life in prison, or death.

On the discharge of their fines and restitution, and completion of any service or labor requirements, and any probation period; all convicts shall have all their civil rights restored, including the right to vote, and the right to keep and bear arms.

Private employers may discriminate against convicts, even after their obligations have been discharged, should they choose to do so. The federal, state, and local governments however may NOT discriminate against convicts whose sentences have been discharged however, except for those convicted of Heinous crimes (who should, in general, not be released anyway) or in the case of employment in law enforcement, criminal justice, corrections, national security, or the military.

Any repeat offense of the same felony, or any violent felony by a convicted felon who has discharged their sentence, shall cause a convict to be considered an incorrigible offender, and subject to an automatic sentence of 25 years, life, or death at a judges discretion (25 years for any crime that would normally rate a sentence less than 25 years. Life for any crime that would normally rate 25 years. Death for any heinous crime, or crime that would normally rate life). As always, this is subject to review and reduction by a judge after the convict has discharged their obligations (excepting heinous crimes).

I call this the “one chance, don’t blow it” rule. I believe it is fully justified, because the nature and scope of felonies is being dramatically reduced; the standards for offense are much higher, and the ability of someone to reintegrate into society without re-offending should be much better under this regime.

That’s it. Not exactly simple, but a lot less complicated than our current system… and if anything can work, it ought to be this.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Innocence Project Press Release: House Passes Bipartisan Bill to Review and Reform the Criminal Justice System

House Passes Bipartisan Bill to Review and Reform the Criminal Justice System

Innocence Project praises the House of Representatives’ leadership and urges the Senate to enact this legislation as soon as possible

(Washington, D.C.: Wednesday, July 28, 2010) – Late yesterday, the House of Representatives passed critical bipartisan legislation, “The National Criminal Justice Commission Act of 2010” (H.R. 5143), to improve the fairness and reliability of the nation’s criminal justice system. Lead cosponsors of the bill include Representatives William Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), Tom Rooney (R-FL), and Bobby Scott (D-VA). This historic legislation, originally championed in the Senate by Senator Jim Webb (D-VA), would create a national commission to examine and reshape the criminal justice system.

Barry Scheck, Co-Director of the Innocence Project, a national organization affiliated with Cardozo School of Law that uses DNA testing to exonerate innocent prisoners and pursues reforms to prevent wrongful convictions, praises House leaders for championing this badly needed legislation and urges immediate Senate action.

“The Innocence Project congratulates the House of Representatives today for passing this historic and crucial legislation. Thanks to the leadership of bipartisan cosponsors, including Representatives Delahunt, Issa, Fudge, Rooney and Scott, this critical commission would improve the underlying fairness and reliability of the criminal justice system. We urge the Senate to pass this legislation quickly so that comprehensive review and reform of the system can begin in earnest.”

For the first time since the Johnson Administration, the commission would review the criminal justice system and recommend key reforms that would improve the system’s effectiveness and efficiency, resulting in increased public safety and confidence. The legislation, which has passed out of the House of Representatives and the Senate Judiciary Committee, now awaits final passage in the Senate. There is significant bipartisan support for the bill, as well as support from a range of interest groups representing law enforcement, academicians, criminal justice reform advocates, and faith-based organizations.

Nationwide, 255 people have been exonerated through DNA testing since 1989, according to the Innocence Project. Those cases are a window into the causes of wrongful convictions. For example:

• More than 75% of wrongful convictions overturned with DNA testing involved eyewitness misidentification;
• In about 50% of the cases, unvalidated or improper forensic science was a factor;
• More than 25% of the cases involved false confessions, admissions or guilty pleas;
• In 15% of the cases, informants provided unreliable information.

The National Criminal Justice Commission could look more closely at these and other causes of wrongful conviction and recommend improvements that would help to prevent such miscarriages of justice. Since the commission would be comprised of highly respected figures from throughout the justice system – including judges, prosecutors, defense attorneys, crime victims and other experts – the recommendations would carry significant weight with decision makers. Texas, California, Illinois, Wisconsin and other states have created similar commissions on the state level, and they have led to concrete improvements in those states’ systems of justice.

For additional press inquiries please contact:

Alana Salzberg, Innocence Project
Asalzberg@innocenceproject.org
212.364.5983

This is very good news. Call your senators and tell them to pass this very important legislation so we can begin to repair our broken criminal justice system.

Modern Jurisprudence is PROFOUNDLY Broken

Two contrasting stories out of the Supreme Court today, that bring home the fact that jurisprudence in this country is profoundly… hopefully not irreparably… broken.

First, from the New York Times:

NO MORE LIFE SENTENCES FOR MINORS WHO HAVEN’T MURDERED…. In yet another 5-4 ruling, the Supreme Court said this morning that incarcerated minors can’t receive life sentences if they haven’t killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

“The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law,” Justice Anthony Kennedy wrote in his majority opinion. “This the Eighth Amendment does not permit.”

The Eighth Amendment, of course, prohibits cruel and unusual punishments.

Justices Alito, Scalia, and Thomas dissented. Chief Justice John Roberts also sided with the minority, though he agreed with the majority on the specific case of Terrance Graham’s fate.

In Justice Kennedy’s majority ruling, he made note of the “global consensus” against life-sentences for youths who haven’t committed murder. The sentence will likely enrage the far-right, which tends to throw a fit when justices take note of international developments.

In a concurrence, Stevens, joined by Ginsburg and Sotomayor, threw an elbow at one of their colleagues: “While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old … Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.”

and in a complete reversal of logic, this judgement:

AP: High Court: ‘Sexually Dangerous’ Can Be Kept in Prison

WASHINGTON (May 17) — The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete.

The high court reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered “sexually dangerous.”

“The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others,” said Justice Stephen Breyer, writing the majority opinion.

President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.

The act, named after the son of “America’s Most Wanted” television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.

A fifth man who also was part of the legal challenge was charged with child sex abuse, but declared incompetent to stand trial.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered “sexually dangerous.”

But “we conclude that the Constitution grants Congress legislative power sufficient to enact” this law, Breyer said.

Justice Clarence Thomas dissented, saying Congress can only pass laws that deal with the federal powers listed in the Constitution.

Nothing in the Constitution “expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power,” Thomas said.

Thomas was joined in part on his dissent by Justice Antonin Scalia.

It seems clear to me, that both of these decisions are examples where justices are deciding a case based on what they want to do and finding a way to justify it, rather than a considered opinion of the law and the constitution.

In the first case, the majority came to what I believe is the right decision on constitutional ground, but for what appear to be the wrong reasons. The minority on the other hand are supporting an unconstitutional practice, based on pragmatic considerations.

In the second case, the majority supported a CLEARLY unconstitutional practice for pragmatic reasons; and the minority dissented based on the constitution.

Both cases however, highlight a major problem with our “justice system” today: We can’t deal effectively with our criminals, our prisoners, or our prisons.

There are many reasons for this of course, but what it comes down to, is that there are too many crimes, too many criminals, and too little honesty in how we deal with either.

Both of these cases are about recidivism. The plain fact is, more than 40% of people who go to prison, go back. More than 60% who go to prison for violent crimes go back. More than 80% who go to prison for sex crimes go back.

There have been a number of attempts at dealing with these difficult facts; none of them effective, and most of them unconstitutional.

In the case of the criminals under 18 being imprisoned for life because of sentence enhancements… The problem here isn’t that it’s a 17 year old in prison for life for something other than rape or murder… Its that “sentence enhancements” even exist at all.

Firstly, I think the whole “global consensus” thing is not only irrelevant, but dangerous and unconstitutional (interpretation of American law should ONLY be based on the Constitution, and the constitutions of the several states)

Yes, the law evolves, and yes it is influenced by changing moral standards, which is influenced by world culture.

When we wrote our constitution, it was in large part based on principles inherent in English common law; as was the early constitutional scholarship and interpretation until we built up our own body of case law. The goes further back to the greeks, romans, even the Assyrians. Certain basic principles of law and justice are universal; or have filtered up through from the earliest formalized conceptions of both rights, and laws.

However, it is important that case law be consistent with the written constitution; and that any case law which is not be ignored in interpretation of future cases, and hopefully be reversed.

If the American people want to change their constitutions, they can. There is a mechanism for that. Until they do, there should be no other arbiter for American law than the constitution.

One of the fundamental principles of jurisprudence is that the law should be knowable, and predictable; not arbitrary and capricious. One should not need to follow “evolving moral standards” and case law in other countries, to know whether one is violating the law.

In a system where ignorance of the law is no defense, the law must be written and knowable. The fact that in todays world it is not; is not an indication that we have evolved morally, it is an indication that modern jurisprudence is profoundly broken.

All that said however I agree that the law in question should have been struck down, just for a different reason.

I believe that “sentence enhancement” conditions are themselves a bad thing. They are invalid and unconstitutional as far as I am concerned. A crime is a crime, and one should be punished the same way for the same crime, as everyone else.

Certainly, there can be special circumstances, but they shouldn’t increase punishment; a maximum punishment should be set, and that’s it. There should be discretion for judges to reduce sentences, but not to increase them. Three strikes laws, hate crime enhancements, all of them need to go.

The problem that three strikes laws are intended to solve (high recidivism rates), is more properly addressed by longer or more harsh initial sentences, combined with better rehabilitation and reintegration efforts, and a better running of our penal system.

In the second case, we again have an issue of inappropriate sentencing.

Genuine sexual predators (rapists, molestors etc..) need to be put away for life without parole, or they need to die (though I have grave reservations about the death penalty). Either way, they need to be permanently removed from society.

For some reason, we treat sex crimes as far less serious than major property crimes, or other violent crimes; as if rape were not every bit as serious as attempted murder (believe me, it is).

Some things require ultimate sanction, and serious sex crimes are among those things.

On the other hand though, we now classify the most piddling things as sex crimes. Right now, we have hundreds of 18 and 19 year old young men in prison around this country, for having consensual sex with their 17 year old girlfriends (somehow, we almost never imprison older young women for sex with teenage boys). We make people register as sex offenders for having consensual sex in the back of their cars in a parking lot…

Which just reinforces the point: We’re broken both ways. We are far too harsh on one side, and far too lenient on the other; and just plain broken all the way around, because a sentence doesn’t mean what it says it means.

The very idea that a state official can simply decide you are too dangerous to be let out of prison, EVEN THOUGH YOUR JUDICIAL SENTENCE IS OVER… It’s disgusting. It’s abhorrent to the very nature of our country, and our constitution.

Three strikes laws, sentence enhancements, sex crime laws… All are seriously broke; because they are attempting to deal with practical problems, in an impossible way. You can’t achieve the goals they’re trying to achieve, with the techniques and tools they are using.

We’re broken. We need to fix it. We need to protect society from real criminals, real dangerous people, real evil people; and we need to provide a strong incentive for the “casual criminal” (and we are all “Casual Criminals” now). But we need to do it, without destroying what it means to be American.

In order to do this, we must first reduce our prison population, not by releasing the truly dangerous; but by DRAMATICALLY slashing the amount of people we imprison (both today, and in the future).

The first thing we need to acknowledge, is that the so called “war on drugs” has not only failed, but was wrongly conceived in the first place.

Imprisoning people for drug use simply does not achieve the goals it is intended to achieve. It doesn’t reduce drug use at all. It doesn’t reduce crime at all, in fact it increases it. It turns people who might otherwise be productive… or at least LESS of a drag on our society; into total dependents. It frequently makes them into “harder” criminals.

It just doesn’t work.

Frankly, I think we should entirely decriminalize drug use and possession; even if we choose to maintain prohibition on importation, sales, and distribution.

Then there is the question of the proliferation of felonies… Damn near everything is a felony these days. Two students in Virgina were charged with felonies last year for THROWING SNOW BALLS. Schoolchildren have been charge with felonies for drawing pictures with guns in them…

Felonies are supposed to be reserved for “high crimes”. Those things which must be punished by long term removal from society.

Does anyone really believe it is necessary to send someone to prison for two years, for serving hotdogs wrapped with bacon out of a cart (yes, that is a felony in several jurisdictions in this country).

The fact is, we classify far too many things as felonies, which simply should not be. We need to eliminate most of those felonies.

What it comes down to, is that we should reclassify most non-violent felonies as misdemeanors, and eliminate custodial sentences for them; substituting EXTREMELY HIGH fines, and supervised restricted release (ankle bracelets etc…).

Combined, that would reduce our prison population by more than three quarters immediately (the drug changes alone would cover 60%). This would allow us to deal with the remainder of that population more appropriately. More harshly for those who need it, and with a higher focus on rehabilitation for those who are willing to make the effort.

Importantly, it would allow us to eliminate early release for those who have not made serious and genuine rehabilitation efforts; allowing prison officials and judges to exercise discretion appropriately.

Perhaps when we no longer have to be so concerned about overcrowding, and inappropriate early releases, and imprisoning those who should not be; we can restore some sanity to the system as a whole.

But that’s all related to the practical issue.. The pragamatic justice as it were..

The bigger issue here, is that under todays conception of jurisprudence, it is impossible to know or understand whether you are breaking the law or not. Whether your crime is a felony or not. Exactly what that crime might be, or what the punishment for it might be.

That isn’t law, or justice; and it isn’t what our country is supposed to be.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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