Does Crime Pay? Yes, for those who don't wince at the
small chance of a big punishment.
By Steven E. Landsburg, Dec. 9,
1999
Criminals, by and large, must be risk-lovers--otherwise they'd be car-wash
attendants instead of criminals. Lottery players, by and large, must be risk-lovers-otherwise they'd buy Treasury bonds instead of lottery tickets. You might be
tempted to conclude that criminals and lottery players are often the same people.
That's probably the wrong conclusion. After all, risk-lovers enjoy having all their
eggs in one basket, which suggests they should pursue either crime or the lottery,
but not both.
Still, if you want to understand what attracts people to crime, it pays to
understand what attracts people to risky activities more generally, so it pays to
understand what attracts people to the lottery.
Lotteries are attractive when they offer big prizes or (relatively) good odds. If you're running a lottery and
you're going to pay out $10 million, you can offer a single $10 million jackpot or you can offer 10 prizes of
$1 million each. Which is more appealing to the players? Usually, the former. For the most part, lottery
players prefer a small chance of a big payout to a bigger chance of a smaller payout. That's because the
people who prefer a bigger chance of a smaller payout are buying certificates of deposit, not lottery
tickets. So if you want to make the lottery more attractive, it's better to double the size of the jackpot than
to double the number of winners.
(More precisely, doubling the number of winners makes the lottery more attractive to the sort of person
who never buys lottery tickets anyway, while doubling the jackpot makes it more attractive to the sort of
person who might actually be tempted to play.)
Now let's apply the same reasoning to criminal deterrence. For the most part, criminals prefer a small
chance of a big punishment to a big chance of a small punishment. That's because the people who prefer
a big chance of a small punishment go into punishing careers like construction work or coal mining
instead of crime. So if you want to make crime less attractive to criminals, it's better to double the odds of
conviction than to double the severity of the punishment.
Add 10 percent to the length of the average jail sentence and crime will fall. Add 10 percent to the
conviction rate instead and crime will fall even further. Like any risk-lovers, criminals are out to beat the
odds, so they get particularly demoralized when the odds turn against them.
So much for the theory; now to the facts. What's true of the lottery should be true at the racetrack. And
gambling consultant Maury Wolff confirms that if you're designing a complicated bet like a trifecta, the
way to generate the most action per dollar's worth of prize money (and hence the most profit for the track)
is to offer very large prizes at very long odds. Why, then, do the tracks continue to offer bets with much
smaller payoffs? According to Wolff, it's because big prize winners take their money and go home while
small prize winners plow their winnings back into the next race. That sets up an interesting trade-off for
the track owner: One big prize maximizes profit on the current race, while several small prizes maximize
the action on the next race. Interesting as that trade-off may be, it's largely irrelevant to the main point,
which is that players like big prizes and long odds. (On another interesting tangent, Wolff asked me
whether there's something inherently corrupt about a system where the proceeds from state lotteries are
used to fund school systems that then have an incentive to produce the kind of students who will go out
and play the lottery.)
With regard to crime, let's consider the most spectacular of all crimes, murder. Here the expert is
Professor Isaac Ehrlich, who, in the mid-'70s, pioneered the use of sophisticated statistical techniques to
measure deterrent effects of conviction and punishment. Together with Professor Zhiqiang Liu, Ehrlich
has recently revisited the subject, refuting his most vocal critics and offering new evidence in support of
his original conclusion: Increase the number of convictions by 1 percent and (to a very rough
approximation) the murder rate falls by about 1 percent. Increase the number of executions by 1 percent
(which amounts to increasing the severity of the average punishment) and (again to a very rough
approximation) the murder rate falls by about half a percent. (These numbers are based on evidence from
the 1940s and 1950s. Capital punishment studies tend to focus on decades with more executions and
hence more data.) As the theory predicts, convictions matter more than punishments.
That's not to say that punishments don't matter. Executions may be a less-effective deterrent than
convictions, but they are nevertheless an extremely powerful deterrent; according to Ehrlich's numbers,
one additional execution in 1950 could well have prevented over 20 murders.
I am grateful to Ehrlich for that amazingly strong result, because I use it to illustrate three points that I'm
always eager to drive home to my students. First, incentives matter, even to murderers. Second,
economic theory predicts that some incentives matter more than others, and the data confirm the theory:
Executions prevent murders, but convictions prevent even more murders. And finally, if you want to give
policy advice, it's not enough to know your numbers. You've also got to know your values. Isaac Ehrlich,
the man who proved to the satisfaction of the economics profession that capital punishment works, is a
passionate opponent of capital punishment.
http://slate.msn.com/id/57573
The mind of a killer
A neurologist who studies murderers' brains talks about factors that
make someone kill, the difficulty of predicting violence and why most
murderers can never be rehabilitated.
-----------By Suzy Hansen
July 27, 2001 | In the past 25 years, Jonathan Pincus, chief of
neurology at the Veterans Administration Hospital in Washington and
a professor at Georgetown University School of Medicine, has sat
across the room from 150 murderers. He has questioned them about
their childhood, administered I.Q. tests and performed neurological
examinations. Pincus met with 15-year-old Kip Kinkel after he killed
his parents and opened fire on a school in Springfield, Ore. He spent
hours with Russell Weston, the man who shot two guards inside the
U.S. Capitol. And he interviewed a charming white-collar professional
named Ted Bundy after he mutilated and murdered as many as 50 women.
All of these people, young and old, white and minority, middle class and poor, shared a handful of
characteristics that, in Pincus' estimation, transformed them from average citizens to coldblooded killers.
In "Base Instincts: What Makes Killers Kill," Pincus presents his research -- much of which deals with
scientific information about the frontal lobes of the brain -- in a nimble, absorbing and highly entertaining
way. (His stories will have you checking the lock on your front door several times before you turn out the
lights.) Although Pincus does not treat his subjects sympathetically, he also knows that to cast them off as
evil, morally debased monsters limits our understanding of the ingredients that somehow get thrown
together to create a killer.
Pincus spoke with Salon from his office in Washington.
According to your book, three things intersect to create a killer: mental illness, neurological
damage and child abuse. Are all three always there?
Two-thirds of murderers have all three factors, and the others have two of the three. It's pretty clear that
mental illness is not enough to cause violence because most people who are mentally ill are not violent.
It's also evident that neurological damage is not enough to cause violence because the vast majority of
people who are neurologically impaired are not violent. And it's clear that the experience of horrendous
child abuse is not enough to cause violence because most people who are abused that way are not
violent. Yet, most violent people have these three factors, or two of the three. That's an indisputable fact.
The theory that explains it is that abuse sets up an impulse toward violence that a good brain can control.
If you get the abuse and the neurological damage and mental illness, then violent impulses are not easy
to check. That's why they are expressed under stress or at times of jealousy or anger.
Have other doctors, sociologists or psychiatrists pinpointed similar causes?
When people have looked, they have found similar causes. You have to do a very thorough study. It
takes me three to four hours with somebody -- that's the time I spend with the individual, examining him,
questioning him and talking to him -- and it takes a psychiatrist at least double that time. And that doesn't
count the review of medical, police and school records that are also available for examination.
How do you determine that a person is neurologically impaired?
There are many neuropsychological tests, just as there are many kinds of blood tests. I do a number of
tests of cortical function -- the cortex is the part of the brain that you think with -- and most of my tests
measure motor and sensory function. For example, I have the patient follow my horizontally moving finger
with his eyes to see if his visual tracking is smooth. If it's not smooth, it indicates that the frontal eye fields
are not working properly.
What about an I.Q. test?
People don't realize that an I.Q. test is not a test of all the parts of the brain. It's a pretty good screening
tool for the back parts of the brain, but not a very good one for the front of the brain. That's the place
where most of the neurological deficits in murderers reside -- in the frontal lobe.
Were most of these people born with this neurological damage, or did their environment
contribute to it?
It's very difficult to say in most cases. In some of them, where there is a history of maternal drinking and
drug use and there are physical characteristics associated with the fetal alcohol effect, it's reasonable to
think that the child was born with it. If someone's head circumference is more than two standard
deviations below the mean, then you can assume that this damage occurred, if not prenatally, then
shortly after birth.
But most of the time there are many factors that could have played a role in the neurological dysfunction,
for example, head injury -- the experience of being physically abused by being beaten in the head. And
then there are automobile accidents, a history of meningitis, a history of encephalitis, a history of
unconsciousness, seizures, epilepsy and drug use. It's very hard to know which of those factors was the
most important one in damaging the brain, which part of the brain it damaged and when that damage was
sustained.
You give the example of Lewis Culpepper, who sexually abused a 5-year-old girl. You explain that
the brain damage that made him able to do that was caused by a car accident.
He was sexually abused for the first 15 years of his life; then he lived 15 years as a relatively good citizen,
held a stable job as a mechanic and married a woman who had been previously married and had a child.
She considered him to be a good husband. He was a responsible father. But all that time he was having
fantasies of a pedophilic nature, which he never acted on. Then he was involved in this automobile
accident where his frontal lobes were destroyed. He seemed to be completely normal, was discharged
from the hospital and was recuperating at home. Shortly after, he began to have a sexual relationship
with his 5-year-old girl [his stepdaughter]. That continued for a year until her mother found out. It seemed
so clear in that case that the destruction of his frontal lobes had destroyed his capacity to check those
pedophilic fantasies and to realize that there were consequences to acting on them.
He didn't seem to think there was anything wrong with what he did?
Right, he thought that the whole thing was exaggerated, and even the personal consequences, such as,
say, being killed in prison for being a pedophile -- that's something that happens in prisons -- didn't seem
to bother him.
Were most of the people whom you spoke to this way as well -- not seeing what was wrong with
what they did or comprehending the consequences?
Many.
Did they express remorse?
Very rarely. In order to express remorse, you have to feel it. The feelings of people who have had frontal
lobe injuries are one of the things that are affected. You can get somebody who knows something is
wrong, but doesn't feel that it's wrong.
What's the difference?
Here's a morally neutral example: I have a patient who's a physician. He had had a frontal lobe brain
tumor that was removed, with consequent severe damage to both frontal lobes, but you wouldn't know
that there was anything wrong with him -- until you talked with him for a little while. He had two or three
automobile accidents that were essentially identical. He would be driving along in a lane that was blocked
off on the highway. He saw the barrier but he could not stop the car or change lanes. He would drive right
into the barrier at 60 miles an hour. Fortunately, no one was hurt.
Now, you could ask, Did he not know that two things cannot occupy the same place at the same time? Of
course he knew that. Did he have an accident every time he drove a car? No. Did he change lanes at
other times? Yes. Well, why didn't he change lanes under these circumstances? You could suggest that
there must be something wrong with him morally. Obviously, that's not true. The same thing is true of
people who have frontal injuries and do terrible things to other people.
This brings up the question that your book addresses, and I want to ask it directly: Where do
morality and ethics reside in the brain?
The only honest answer to that is that I don't know. But I do know that morality and ethics are expressed
through the brain. And if there's something wrong with the brain, there could very well be something
wrong with the expression of morality and ethics. If a composer wishes to let an audience know what is in
his mind, he must have a symphony orchestra. And if the symphony orchestra plays well, and it's terrible
music, then there's clearly something wrong with the composer. But if he wrote something and, after a
terrible performance, an investigation reveals that the symphony orchestra was performing on broken
instruments, then that must have had something to do with the poor performance. It doesn't get the
composer off the hook, but if there are broken instruments in the orchestra, it's not fair to judge the
adequacy of the composer.
Do you feel the same way about free will?
Free will, let's say, resides in some recondite place, but it's expressed through the working of the frontal
lobes. If there's something demonstrably wrong with that system, and the behavior could be explained by
such a lesion, then I think it should be considered mitigating at least, if not exculpatory.
Do you apply the same composer/orchestra metaphor to the question of someone's being evil? I
wonder what it was like for you sitting in a room, across from some pretty horrible people, and
trying to give them the benefit of the doubt. Did you ever reflexively think, OK, this man or woman
is just evil and that's it?
There have been very few criminals whom I've seen who have not acted in a totally unacceptable and evil
manner. There have been very, very few who I thought should not be punished for what they did. To the
extent that a person has exercised free will -- and very few people are turned into automatons by this
combination of abuse, mental illness and neurological deficit -- they should be punished, and punished
severely. But if these factors, which are not under their control, are operative and may have influenced
their actions, then they should be mitigating.
So what does your work lead you to think about the punishment for murderers?
The issue I'm really facing is: Should this person be executed or given life imprisonment without
possibility of parole? I think the latter. I am not one of those people who believe that life imprisonment is
somehow the same as getting off and being free. The conditions in prison are far from plush. It's not a
country club. Just the idea of not being free is a terrible, terrible deprivation.
Has your research gotten many killers off death row?
I have been moderately successful in that way. Two killers whom I've examined have been executed.
Do people call on you to make judgments of guilt or innocence -- to examine people who have
been accused of violent crimes?
Everyone I've seen has been guilty.
Would it be possible for you to make accurate predictions about whether someone is likely to
become a murderer?
There was a guy named Joel Rifkin who killed 16 prostitutes in New York. He killed the first one when he
was 32. He's in some upstate prison now. If I had seen him before he was 32, I would have said, "Here's
a guy who goes to prostitutes a lot, has neurological damage and was abused as a child, and he has
some pretty weird fantasies, but he's never been violent." He had been thinking about killing people for
quite some time, and most serial murderers do that. But it would have been very difficult to predict his
behavior because not everybody who has all three of these things is violent. And not everybody who is
violent is violent all the time.
Have your feelings toward the death penalty evolved over the period that you've been doing your
research?
Yes and no. I am not a principled opponent of the death penalty. I believe that it might be appropriate in
certain circumstances, but I think that it should be used rarely and for the most horrendous of crimes -such as Adolf Eichmann. Or even Timothy McVeigh.
Did you examine Timothy McVeigh?
I did not evaluate him, but I was asked by one of the defense attorneys if I would be willing to, and I said,
yes, I would. I wasn't asked because McVeigh wouldn't permit that type of a defense -- a diminishedcapacity defense. He preferred to be executed as the embodiment of evil, rather than have someone say
that he was a sick, weak character, which is probably what he was.
Does your theory of what makes a murderer seem to apply to him?
All I know about McVeigh is what I've read in the newspapers. He was paranoid -- he thought that the
government was against the people and against him. He was also grandiose -- he believed that he was
specially endowed and was going to be the Rambo to take on the government of the United States.
Blowing up public buildings was his Sylvester Stallone-like posture. There was something seriously wrong
with him mentally.
Although there was no history of abuse reported, I got vibes that his family didn't have a close
relationship: He didn't want them to be in the prison at the time of his death, and there was very little
contact during the trial. Why was that? Where did all of this hatred of authority come from? My guess is
that he was abused.
But he killed 168 people, and for a crime like that, maybe the death penalty is justified.
We're talking about people who hate. What about the killers of Matthew Shepard?
I did examine Aaron McKinney, one of the killers. He satisfied the criteria. Who commits crimes of hatred?
Who wants to hate people like that? It doesn't just spring into someone's mind to hate this or that group.
Those things are programmed by experience. People have various reasons for hating groups. There's
always some group available to hate, and it's the people who have been abused who displace their anger
onto a particular group. There's an example in the chapter titled "Hitler and Hatred" of a young man who
hated women.
So you think this applies to Hitler as well?
I'm almost positive it does. There were two or three paragraphs in "Mein Kampf" in which he seemed to
indicate that he came from an extremely abusive home, and there was independent evidence of that. A
guy by the name of [Walter] Langer was commissioned by the OSS, the predecessor of the CIA, to do an
in-depth psychological study of Hitler. He had primary sources of information -- Hitler had a half-brother
who was a petty criminal. The story was that Hitler had been left for dead once after a particularly bad
beating. His father was a drunk who would come home and beat up the family. In "Mein Kampf," he even
hints that he experienced sexual abuse.
That explanation is kind of hard to swallow because Hitler seems so different from, say, the young
man in your book who impulsively killed the convenience store cashier.
Remember, Hitler probably was not brain-damaged and was probably very bright. But he was also manicdepressive and filled with anger at a variety of things.
The man who held up a convenience store in Modesto, Calif., who shot and killed the proprietor and
forgot to steal anything, was functioning with an I.Q. of about 70. Instead of having mental illness, as
Hitler did, he was neurologically impaired. But they both had been horrendously abused.
By "abuse," you're usually talking about really disgusting abuse. Some of your passages
describing child abuse are more horrifying than the murders.
This guy in Modesto had been raised in a home where he had impetigo at age 2. The neighbors
described how cockroaches covered his body and there were so many cockroaches in his house that you
couldn't see the color that the wall was painted. The kid was starving and he used to eat lead paint.
What about Jeffrey Dahmer and Ted Bundy? What did you find in them?
I only examined Bundy. His neurological examination was normal, but he had symptoms that suggested
manic-depressive illness and a history that was strongly suggestive of grotesque sexual abuse. I did
speak to Dahmer's mother in a confidential phone conversation, and sexual abuse was suggested by
some of the things she said to me.
How would you assess Andrea Yates?
Postpartum depression is usually seen as part of bipolar disorder, so there was the mental illness part of
it. What went on in her own home when she was a little girl, I don't know. But Susan Smith, who drowned
her two children, was sexually and physically abused as a child. And she was depressed at the time that
she did that.
I noticed that the father of one of the murderers in your book was a fundamentalist minister. Does
being raised in a very strict religious environment have any effect on potential murderers?
Actually, I didn't study religion, but I did find murderers who came from strict religious backgrounds. Of
course, what passed for religion in their homes is hypocritical. There was the serial killer whose father
was a fundamentalist minister and subjected the family to frequent biblical exegesis. He was very
inconsistent in his own behavior and what he tolerated. He was extremely perverted, he and his wife both,
with the children. The abuse included ritualized beatings, which he found sexually stimulating. Most of the
children did not turn out to be antisocial, but one became a serial murderer and used to amputate the feet
of prostitutes. That could be traced to the way his mother used to deal with him in a sexual way.
It seems mysterious that people suddenly become violent killers after years of a seemingly normal
life. For some of them, it takes 30 years to become violent, while others are killers at age 12.
It's during periods of mania, when a killer feels released from the constraints of society, and during
periods of depression, when he's feeling victimized again, that he's likely to be a perpetrator. A lot of
serial killers do all of what they do within a little space of time; then there's a period of calm and they do it
again.
What about groups like the Mafia? It seems like Mafia men don't have much in common with Kip
Kinkel or Ted Bundy.
Everything that we know about the Mafia is anecdotal. But I would imagine that the hit men have come
from abusive families. The issue is whether they are neurologically impaired, and I suspect that they are.
But it's possible that these people may have grown up in a world where they weren't asked to control their
violent impulses, or where violent behavior was accepted.
In his book about Nazi Germany, "Hitler's Willing Executioners," Daniel Jonah Goldhagen estimated that
up to half a million German civilians might have actually killed people. That's an enormous number, but
there were 60 million people in Germany at that time. It's still a small minority. Were they all brain-
damaged and mentally ill? I doubt it. But I bet that all of them were abused in some way as children. Then
the government tells them that if they kill a member of a certain group, it will be good for the country.
Is there a difference between the architects of murders and the people who actually pull the
trigger?
That's a good question. I don't know. I've only examined two hit men and they both had all three factors.
Psychiatrist Dorothy Lewis examined a death row executioner and he was quite like the people he
executed.
The executioner displayed the same characteristics that murderers do?
Yes.
What about the people who murdered but who didn't seem to have all three of these
characteristics -- how do you explain them?
There was one boy, for example, who was 15 when he stabbed his next-door neighbor to death. He had
been adopted in the first year of his life. His adoptive parents, from everything that I could learn about
them, were not abusive. They were decent, fine people. But the boy was psychotic and had been braindamaged. He was born to a heroin addict who had manic-depressive illness. He had two of the three
factors. He thought that his neighbor was spying on him. It was a delusional belief and he couldn't check
the impulse to kill. In this case, one of the few such cases, I actually think the media played a role,
because he used to watch "The Texas Chain Saw Massacre" again and again and again. I think that set
up the paradigm for doing what he did.
So watching violence can affect young people?
That's rare. Actually, more than a few people I saw had been fascinated by violence or had seen the
same violent video again and again. That did form the template for what they did. But the real horror in
their lives was not coming from the videos, it was coming from their homes.
You also talk about the hallmarks of abuse -- cruelty to animals, fire setting, bedwetting. Do
people use these things as predictors?
They use them as predictors of violence. That's been known for some time. What hasn't been known is
that they are indicators of abuse. You show me a kid who's set fire to his bed or his parents' bed and I'll
show you a kid who's been sexually abused. With cruelty to animals -- things like setting a cat on fire,
really awful things -- he's trying to enact what's happened to him on something weaker than him.
Do groups or organizations exist that are trying to determine whether certain children may end up
violent later in life?
There are some, but not enough. One of the shining examples of what the government can do is in
Hawaii. The organization, Healthy Start, targets women who are about to give birth and are likely to be
abusive on the basis of certain criteria -- unstable housing, inadequate education, no immediate family
contacts, a history of substance abuse, a history of psychiatric care, depression. It offers a woman the
services of a trained person who goes into the home and helps with applying for welfare and housing,
making contacts at medical clinics and teaching her how to be a mother. Some people are just ignorant
about that, probably because they've never seen good parenting themselves.
If society targeted child abuse, you'd get rid of a lot more than just violence.
Can violent murderers be rehabilitated?
I don't think so. To the extent that their mental illness can be treated and their neurological illness can be
treated, they might have a lower potential for violence, but never a zero potential for violence. I don't
believe in a medical -- as opposed to a criminal -- approach to corrections where violence is concerned.
I'm not against treatment, but it should be done in a correctional facility. I would never want someone out
on the streets just because he was under treatment.
salon.com
http://archive.salon.com/books/int/2001/07/27/killers/index.html
Psycho factories
Nonviolent criminals go in and sadistic thugs come out,
but with military spending down, America's small towns
are hooked on prisons.
By Maria Russo
---------March 29, 2001 | "Going up the River" has a central
idea so intuitively convincing, you wonder how it ever
escaped our attention: In the aftermath of the Cold
War, Americans have replaced military spending with spending on new, high-tech, ever-more-punishing
prisons. Prisons are now seen primarily as sources of jobs and revenue, rather than as places for
rehabilitating criminals. Those who run prisons have abandoned penal theory -- that troublesome
business of figuring out what best helps inmates, most of whom will eventually return to the outside world,
clean up their acts. Programs for inmate education and counseling have been steadily disappearing. We
no longer want to reform criminals; we simply want to punish them -- and, not incidentally, to make as
much money as we can off of them in the process.
Across the country, this shift in strategy has saved a few economically desolate rural towns that have
become homes to the new prisons. It has also lined the pockets of corporate giants such as AT&T, which
controls the lucrative pay phones in prisons. (Inmates now spend an estimated $1 billion a year on longdistance phone calls.) And it has made millionaires out of many savvy, and quite a few plainly
unscrupulous, wardens who have jumped ship from public prisons to new private ones, where they can
cash in on stock options and take home free-market salaries and huge "consulting fees." These corporate
ventures, with names such as CCA, the Corrections Corporation of America, often build prisons on spec,
then rent their cells to state systems at bargain prices, snipping a few dollars a month off the cost of
keeping an inmate at a public prison.
Just as the prison boom has kicked in, the national crime rate has dropped. Yet we've continued to build
new prisons -- because we like them, not because we need them, argues Joseph T. Hallinan, author of
"Going up the River." It's a classic case of the tail wagging the dog, he says. To do this, we've had to
persuade ourselves to believe about crime "what Americans had believed about communism in the
1950s: that its threat lurked everywhere at all times, and could be stemmed only by the creation of a vast
military-industrial complex -- only now it was a prison-industrial complex."
There are, of course, other factors at play in the prison boom: The crime rate may have fallen steadily in
the last decade, but the length of the average prison sentence has gone up. Hallinan, a journalist who has
been writing about the criminal justice system for almost a decade, shows how the rise of mandatorysentencing laws, in particular those for drug offenses, took discretion away from experienced judges,
eliminated mercy and stuffed prisons with nonviolent offenders serving long terms with no possibility of
parole. In 1995, the average prison term served for homicide was six years; for selling crack cocaine, it
was 11.
Life behind bars, meanwhile, has become all the more degraded, Hallinan reports. In some maximumsecurity units, inmates regularly pelt guards with feces, urine and food; the guards wear safety glasses. In
several state systems, such as Illinois', well-organized gangs effectively run prisoners' daily lives,
terrorizing and raping the weak, even controlling cell and work detail assignments, all the while
overseeing the drug traffic back home from their phones while guards look the other way.
In part thanks to those mandatory drug-sentencing laws that treat crimes involving crack cocaine much
more harshly than those involving standard-issue cocaine or other drugs, inmate populations are
disproportionately black. But new prisons are almost always built in white, rural areas, far from inmates'
homes. Politicians claim this is because these areas suffer from high unemployment, but as Hallinan
points out, the nation's inner cities aren't exactly hotbeds of employment opportunity, either. While studies
have shown that regular contact with family and close friends in the outside world is a key to prisoner
rehabilitation, most inmates are now housed across entire states from their homes, in places with little
opportunity for job programs or other community involvement as their sentences near completion.
Hallinan shows how racial tension between white guards and nonwhite inmates is almost inevitable; the
symbolism alone is enough to drive up the stakes in the slightest confrontation between the two sides. In
Texas, armed white guards patrol on horseback while the mostly black and Chicano inmates do field
work, singing work songs passed down from the days of slavery.
The problem is that while building new prisons near the areas that most inmates come from makes a
certain kind of rational sense, it doesn't make emotional sense at a time when the public wants to see
criminals punished, not just locked up. The result, Hallinan writes, is that regardless of the severity of the
average prisoner's crime, his time behind bars has become "pointlessly punitive." Being far from home
and not likely to receive visits has become just another psychic dimension of the punishment that the
public demands.
Humiliations large and small are thought up for prisoners: In some Alabama prisons, an inmate caught
masturbating is made to wear a pink uniform. It's as if prisons have become a stage on which to play out
our lust for vengeance and our rage about the toll that violent crime has taken on our national psyche.
Florida, for example, recently debated a bill to require its prisons to be "no-frills" -- no TVs, no weights,
even no air conditioning. "Our objective is to make prison life intolerable," as one supporter summed it up.
But as Hallinan shows again and again, brutal, dangerous prisons that give their prisoners nothing
meaningful to occupy their time produce brutal and dangerous inmates. What happens, then, when these
prisoners return to the outside world? Today's prisons, "Going up the River" suggests, regularly turn
garden-variety, low-level criminals into violent, sociopathic thugs who are much more dangerous when
they come out than when they went in. Higher education for inmates is "on the verge of extinction." Many
prison units become sick, self-enclosed dystopias. "You can't create and maintain a climate where people
want to change," as one former corrrections commissioner puts it, "where every day when they open their
cell door ... they're preoccupied with their survival that day."
Rehabilitation, though, appears to be the furthest thing from the minds of prison officials dealing with
extreme discipline problems. Restoring order and taking the system back from the gangs are the first
priority of the prison officials Hallinan quotes, and the solution most have embraced is the new breed of
"supermax" prisons, the "handful of ultramodern, ultraexpensive, increasingly popular prisons designed to
deprive the men in them of human interaction."
Illinois, for example, sees its new supermax as the only way to break the stranglehold of gangs on prison
life; 80 percent of its supermax prisoners are gang leaders. Supermax inmates spend 23 hours a day
alone in windowless cells, with an hour of daily exercise in a caged-in yard. Most are allowed either no
phone calls or one 15-minute call a month, with no cafeteria visits, no library privileges and only an
occasional, brief "noncontact" visit. These supermaxes are, in short, "incubators for psychoses," in one
psychologist's phrase, yet many of the prisoners here are eventually returned to the general prison
population.
But like all new prisons these days, supermaxes have been greeted with universal excitement -- they are,
after all, a boost to any local economy. If the notion that we've put a smiley face on prisons sounds farfetched, consider Polk County, Texas, where, Hallinan reports, a new prison was greeted with great
cheers. Three days before the prison's opening, the prison held an "open house." For $25, members of
the public got to eat real prison food, wear real prison clothes, even spend the night in a real prison cell.
The town's mayor strummed a guitar from a bunk in one cell, and a judge sang appropriate favorites such
as "Folsom Prison Blues." Or consider Wallens Ridge, Va., where the new supermax was celebrated with
a party complete with yellow and white tent and barbecue pit. The warden told the crowd how proud he
was of his town's new prison, which "shows we can make a difference. We can create jobs and prosperity
and protect people while we're doing it."
It has never been easy to keep order in prisons, which are, after all, filled with people who have shown
themselves capable of antisocial behavior and much worse, many of whom have little left to lose. How
many resources does society really want to invest in them, and just what are prisoners' rights beyond
food and shelter? Hallinan shows how over the past few decades, pendulum swings in the nation's courts
on these age-old issues have played a crucial part in the development of the prison-industrial complex.
Prior to the '60s, wardens ruled individual prisons virtually at their own discretion; courts rarely intervened.
But the Black Muslims succeeded in getting the Supreme Court to pay attention to prison life with its
ruling that Muslim inmates must be given the same religious accommodations as Christians. A frenzy of
inmate lawsuits followed. Suddenly, inhumane conditions that had always been a feature of many prisons
-- such as severely overcrowded Alabama jails in which six inmates were crammed into a cell measuring
4 by 8 feet, with only a hole in the floor for a toilet -- were ruled unconstitutional.
The next decade saw the courts ban corporal punishment in prisons and set limits on solitary
confinement. Rules were eased on everything from inmates' dress codes to the number and duration of
visits to the censorship of their mail. Prison counseling programs flourished. Furlough and early-parole
programs were begun in several states.
But after the move toward "empowered" prisoners came something else: a surge of deadly prisoner
uprisings, beginning in 1971 at Attica in upstate New York, in which 43 people were killed. The national
mood shifted again, away from sympathy toward prisoners' concerns, away from the concept of
rehabilitation, and toward the idea that prisons exist to be the hell on earth that criminals deserve -- and
God knows we need more and more of 'em in these corrupt, immoral times.
It's the unseemliness of it all, of the newly acceptable blithe, cheerful attitude toward prisons, and of the
new opportunities to make millions off the misfortunes of others and the most entrenched social
problems, that most seems to offend Hallinan. And yet that's also what sets him at cross-purposes in
"Going Up the River." His instincts as a moralist compete with his talent for drawing amusing portraits of
wacky personalities. He lavishes several hilarious pages, for example, on San Quentin's Dr. Leo Stanley,
who served as the prison's warden in the 1930s and believed that crime could be caused by the
psychological pain of being physically unattractive. Stanley started by giving nose jobs to all crookednosed inmates, but before long, Hallinan writes, "He was giving inmates face lifts to smooth their wrinkles,
paring down and pinning back elephant ears, even removing blemishes."
Comic relief is a good idea when it comes to a potentially depressing topic like prisons, but at times
Hallinan gets carried away. Some of his portraits, both of prisoners and of prison workers, come close to
cruel condescension. There's something a bit slimy about his "sympathetic" Tobacco Road-esque profile
of the hapless, toothless Groves family of North Carolina, three entire generations of whom are now in jail
for running a crack-selling operation out of the matriarch's trailer. (Hallinan patiently details how each of
the none-too-swift family members realized they were being busted, complete with colorful exclamations
such as "They done got Mama!"). I felt equally manipulated by his subtle ridicule of a tightly wound
Virginia prison guard named Jennifer Miller (known among the inmates as "Killer Miller").
"I loved it from the moment I walked in," she says, beaming. "I loved the sound of those doors clanging
behind me. It was like a big adventure." When she was a girl, her father would take her for a ride on the
back of his Harley-Davidson. The faster he would go, the more she liked it. Prison, she said, is a little bit
like that.
Is Hallinan's point that it's wrong to love your work as a prison guard? Here's a job that Miller enjoys, one
that allows her to utilize her seemingly boundless anger toward men and her need for both control and
adventure. We may have too many prisons in this country, and we may be building new prisons like the
one she works in for all the wrong reasons, but if someone has to be a prison guard, she is an excellent
candidate.
Still, "Going up the River" is a good, well-researched trip through our national prison culture. What it
needed to be a great book was a little more analytical steam, and less reportorial whistling. He might
have contended, for example, with the many conservative counter-arguments to his thesis, such as the
idea that the crime rate is down precisely because we've locked up more of the bad people, and given
them longer sentences. While he's devoting pages to describing the weirdo characters and tragic lost
souls he meets in his travels through prisons, or recounting some of the alternately kooky and horrifying
decisions that are made by the people who run individual prisons, Hallinan lets pass with too little
reflection some truly knotty larger conflicts. These include problems such as how to keep prisoners
occupied and help them develop job skills while not exploiting prison labor, and the moral question of how
we can know whether a coldblooded killer is "rehabilitated." He seems only minimally interested in the fact
that, for the most part, the guards who might seem to be among the main beneficiaries of the prison boom
themselves live with economic and psychological struggles that parallel in eerie ways those of the
prisoners they guard.
This is the dark territory that Ted Conover explored in his 2000 National Book Critics Circle Awardwinning book, "Newjack: Guarding Sing-Sing." Conover went undercover to work as a guard at the New
York state maximum-security prison. The two books strike quite different moods, though they convey
many of the same ideas and conclusions. Take your pick: Where Hallinan delivers his devastating verdict
on prisons with an amusing dose of quirky Americana, Conover gives readers gritty realism, psychological
probing, a total immersion experience. Eric Schlosser, author of the exposé "Fast Food Nation," has his
own book about the subject in the works. With some of our best, most serious-minded writers turning their
attention to prisons, those of us who haven't yet acknowledged the full implications of the prison boom
won't be able to ignore it for much longer.
http://dir.salon.com/books/review/2001/03/29/hallinan/index.html?sid=1020655
Swept away Thousands of women, often guilty of little more
than lousy judgment, are serving long prison sentences as drug
"conspirators."
By Nell Bernstein
---------July 20, 2000 | Natasha Gaines came home recently to find an
urgent message from one of her mother's lawyers: President Clinton
had just commuted the sentences of four women and one man
serving long prison terms for conspiracy under mandatorysentencing drug laws. It was good news, attorney Tracey Hubbard
assured Gaines, whose mother, Dorothy, is serving a 19-year
sentence in Tallahassee, Fla., for conspiracy to distribute crack
cocaine. If Clinton had been moved by these women's stories, perhaps he would grant Dorothy's
application for clemency. Maybe her mom would finally be allowed to come home.
But Natasha wasn't sure just how hopeful she should feel. Like the four women pardoned by Clinton, her
mother -- like tens of thousands of other women -- was sentenced to prison as a drug "conspirator," guilty
of little more than having a man in her life who was involved with drugs. Clinton's decision to commute the
five sentences received relatively little attention. There was no White House press conference and no
press release.
Unlike his better-publicized grant of clemency to 12 Puerto Rican nationalists last year, which was
perceived by some as an effort to win votes for Hillary Rodham Clinton in New York, Clinton's pardon of
the drug "conspirators" appeared to have little or no political value as far as the White House was
concerned. And political value is something that Dorothy Gaines and her daughter would understand.
Political value has a lot to do with why Dorothy is in prison in the first place.
What the White House didn't say when Clinton ordered the release of Amy Pofahl, Serena Nunn, Louise
House and Shawndra Mills is just how unremarkable -- and how political -- these women's cases are. This
was not a case of a president extending clemency to prisoners whose convictions were reached in error
or were uniquely unfair. Their convictions (and prison sentences) were completely routine under the
federal conspiracy provisions passed as part of the mandatory-sentencing movement of the late 1980s.
In fact, mandatory sentencing and conspiracy provisions have contributed to a boom in the female prison
population that is unprecedented in its scope, and devastating in its impact on children and families.
Female prisoners are now the fastest-growing -- and least violent -- segment of the prison population
nationwide.
According to a December 1999 report from the General Accounting Office, the number of women in
prison has increased fivefold in the past two decades, from 13,400 in 1980 to 84,400 by the end of 1998.
Between 1990 and 1997, the number of female inmates serving time for drug offenses nearly doubled; in
the federal prison system, a staggering 72 percent of female inmates are serving time for drug offenses.
The U.S. Sentencing Commission reports that 1,199 women were sentenced to federal prison on
conspiracy charges in 1999, out of a total of 3,001 sentenced for drug trafficking in general. Given the
length of the sentences mandated, that means that tens of thousands of women are in federal prison on
charges similar to those of Pofahl, Nunn, House and Mills.
In its report, the GAO attributes much of the increase in the female prison population to "tough on crime"
measures such as mandatory sentencing. Mark Mauer of the Sentencing Project in Washington agrees;
in his recent book, "The Race to Incarcerate," he blames a shift in philosophy about the purpose of
incarceration -- from rehabilitation to punishment -- for the move away from indeterminate sentencing (10
to 20 years, 15 to life, etc.) to mandatory minimums.
Rehabilitation, after all, is a mysterious and unpredictable process: Who can say how long it will take? For
that reason, says Mauer, a sentence intended to rehabilitate was seen to require some built-in flexibility.
Once offenders began to be defined exclusively in terms of their criminal acts, and the function of
incarceration came to be seen solely as deterrent and punishment, such flexibility was no longer required.
Enter mandatory minimums.
The 1986 Anti-Drug Abuse Act, passed at the height of the crack epidemic and signed by President
Reagan just a week before Election Day, established most of the drug-related mandatory sentences
currently in effect. The 1988 Omnibus Anti-Drug Act upped the ante, adding mandatory sentences for
simple possession of crack cocaine and changing the drug conspiracy penalties so that a co-conspirator
faces the same penalties as the person who actually commits the offense.
This is how mandatory sentencing works: If you are found to have possessed or distributed a specific
amount of a particular substance, you will serve a legislatively mandated number of years, regardless of
the circumstances of your crime, your character or any other mitigating factors. The judge has zero
discretion and must impose whatever sentence the legislature requires.
Conspiracy laws represent perhaps the nastiest twist in the mandatory-sentencing statutes. Under
mandatory sentencing, people who sell even small quantities of drugs can wind up with brutally long
prison sentences. Under conspiracy laws, those who don't sell drugs -- who merely have the bad fortune,
or judgment, to be associated with people who do -- can wind up with those same sentences.
The "conspiracies" that lead to these convictions rarely involve overt plotting and scheming to distribute
large quantities of drugs. For a woman whose husband or boyfriend is involved in the drug trade,
conspiracy may consist of having drugs in the house, taking phone messages from drug associates or
driving the husband or boyfriend to the bank where he makes an illicit deposit. In some cases,
prosecutors have not been required to prove that a "conspirator" knew she was committing any of these
acts; a finding that she should have known what her man was up to has been enough to secure a
conviction.
Eric E. Sterling, now president of the Criminal Justice Policy Foundation in Washington, was counsel to
the House Committee on the Judiciary from 1979 to 1989, advising the committee on its anti-drug efforts.
As such, he had a front-row seat as all this came to pass.
At the time mandatory minimums were enacted, Sterling says, he thought they were a bad idea, but he
had no idea just how damaging they would prove to be in practice. Congress' intent in passing the laws,
Sterling says, was "to give the Justice Department the tools and the impetus to prosecute the most
important drug traffickers."
But the legislation was passed without hearings and Congress made some crucial errors that have
allowed today's abuses, Sterling says. Mandatory minimums are based on a rigid schedule of "triggering
quantities" of drugs that determine the length of a particular sentence. Many of the quantities are
ludicrously low, leading to the prosecution of minor players as major kingpins.
This happened, says Sterling, in part because members of Congress knew very little about drugs, and
without the benefit of expert testimony that hearings would have provided, they wound up with a fairly
random set of numbers. Another problem, according to Sterling, is that those writing the legislation "didn't
speak metric." Says the attorney, "Most members of Congress might have trouble telling you if a milligram
is bigger than a kilogram."
When the conspiracy provisions were tacked onto the mandatory-minimum laws two years later, even
less attention was paid to their potential impact. "To say that there was congressional intent would be to
give too much significance to the way in which it was processed," Sterling says. The provisions attaching
the same mandatory minimums to conspiracy as to drug trafficking itself were "characterized as a
technical correction," Sterling says, and passed with very little notice. "They have resulted," he adds, "in
the additional ensnarement of minor participants in drug offenses and in their being treated as though
they were the central kingpins."
While this result may have initially been unintended, Sterling notes, Congress has very little motivation to
undo its error. "First of all, the Congress in general is indifferent to claims of injustice and inequity in
cases of accused persons," Sterling charges. "Secondly, [conspiracy laws are] a very powerful tool for
eliciting testimony and coercing guilty pleas. The final reason is that any vote that would have the effect of
lowering penalties for drug offenses runs the risk of being characterized as 'soft on drugs.'"
The fact that four out of the five prisoners whose sentences Clinton commuted were women is no
coincidence. While women are actually slightly less likely than men to be sentenced on conspiracy
charges, when they are, it is often because they are not involved in a major way (or at all) in the drug
trade.
Under mandatory-sentencing laws, the only way a person charged with a drug offense can get a
sentence reduction is to help prosecutors build a case against someone else. Many women who wind up
serving time on conspiracy charges are doing so because of the testimony of boyfriends or husbands who
won sentence reductions for themselves on the basis of this testimony. The less involved a woman
actually is, the less she has to offer prosecutors -- and the more likely she is to do serious time.
The women whose sentences Clinton commuted have stories that are as appalling as they are typical.
Amy Pofahl didn't know that her businessman husband, Sandy, was a major ecstasy importer until after
he was arrested in Germany. When Sandy asked her to help him retrieve hidden drug profits so he could
post bail, Amy complied. When Sandy offered testimony against various of his associates, he threw in
information about Amy's involvement with his finances. Sandy did four years in prison; Amy was
sentenced to 24.
Serena Nunn's story is also typical. At 19, she got involved with the son of a drug dealer. Her role in his
drug activities consisted of driving him to an occasional meeting, but because she refused to testify
against him, she received a 16-year sentence.
Among the women currently serving decades-long sentences on conspiracy charges are many others
with similar tales to tell. According to the advocacy group Families Against Mandatory Minimums, they
include:
Sharvone McKinnon. McKinnon was a school-bus driver; her boyfriend was a major crack dealer.
McKinnon took messages for her boyfriend, occasionally let his employees drop off drugs at their house
and on one occasion delivered money for him. Eventually she left him, but not soon enough. He was
arrested shortly thereafter, and she was convicted of conspiracy to distribute cocaine. McKinnon is
serving a life sentence.
Kemba Smith. Smith was a college freshman when she fell in love with a drug dealer. After he was
arrested, she collected money from one of his associates and secured a lawyer for him. When he was
released on bail, she fled with him and they spent a year on the run. Eventually, Smith turned herself in
and told the authorities what she knew about her boyfriend's whereabouts. By the time they found him, he
was dead, and Smith's information was of no use. Smith was convicted of conspiracy to distribute
cocaine, lying to federal authorities and conspiracy to launder drug money. She is serving 24.5 years.
Sylvia Foster. Foster, a former corrections officer who worked at a group home for handicapped adults,
dated a crack dealer who used her home to cook and store crack. About six months into the relationship,
Foster found cocaine in her house and broke up with her boyfriend. Foster claimed at trial that she had
not known about his activities and was innocent of any crime; as a result of this claim, she received a
sentence enhancement for obstruction of justice. Foster is serving 24 years.
None of these women had any prior offenses.
Dorothy Gaines had one -- writing a bad check for $155. Gaines, 42, was dating a drug user who was
part of a crack ring in Mobile, Ala. When the state came down on the ring, Gaines was caught in the net.
At trial, she testified that she was unaware of any drug activity. Several of her alleged co-conspirators
(including an aggrieved ex-husband with whom she had battled over child support) testified that she had
kept crack at her house and delivered it when told.
Gaines was convicted in federal court solely on the word of witnesses who received sentence reductions
in return for their testimony. Her sentence is longer than that of any other member of the conspiracy,
including the so-called kingpin, who will be released eight years before she will.
Natasha Gaines, now 25, was a college student when her mother was convicted in 1995, and she
followed the trial closely. She knew, she says, that her mother had never had anything to do with drugs -and also that her mother had always been "naive." Says Natasha, "You know how people say, 'Don't take
my kindness for weakness'? Her kindness was her weakness.'"
Her mother's boyfriend, who refused to testify against her, told the judge that he had heard his
codefendants, who were all kept in the same jail cell, "trying to get their stories straight" on Dorothy's
supposed involvement. The fact that the trial proceeded anyway, and that her mother was convicted
based solely on these men's testimony, taught Natasha some important lessons about the American
judicial system in general and conspiracy laws in particular.
"My definition of conspiracy," Natasha says, "is that it's a way for the government to build a case when
they have no evidence. They get people who are willing to work for them because they do have
something on those people, and then it's like a Broadway play. 'We've rehearsed this over and over, and
now we gotta convince these 12 people who've got tickets -- the jurors -- that we deserve a Tony award.'
That's pretty much how I see it."
Natasha left college when her mother went to prison in order to take care of her younger sister and
brother, now 17 and 15. Her brother Phillip, she says, has "taken it the hardest. He was only 2 when his
daddy died, so he's always been the child that stays with my mom. Everywhere my mom went, he always
tagged along. He's just mama's baby, and I've watched him suffer the worst."
In the early years of his mother's incarceration, Phillip made his own efforts to defend her reputation and
secure her release. "Dear Judge," he wrote in a letter to the man who had sentenced his mother, "I need
my mom. Would you help my mom? I have no dad and my grandmom have cancer. I don't have innyone
to take care of me and my sisters and my neice and nephew and my birthday's coming up in October the
25 and I need my mom to be here on the 25 and for the rest of my life. I will cut your grass and wash your
car everyday just don't send my mom off. Please Please Please don't!!!" Phillip included his phone
number in case the judge had any questions.
When the judge didn't call, Phillip moved on. "Dear President Clinton," he wrote in March 1995, "I hope
you can free my mom. I need her. Because I am just a little boy! I am just ten year old. I need my mom
very much. Please get her out I need her."
Five years later, Phillip describes himself as "still holding on. I never did lose hope. I just thought they
weren't interested.
"Words cannot explain how much I miss my mom," says Phillip, who belongs to a growing contingent of
children orphaned by the drug war. The number of children whose mothers were in federal or state prison
nearly doubled between 1991 and 1997, to 110,000. Most of these are the children of single parents;
when mom is shipped off, they have no one left.
Because there are fewer state and federal facilities for women than for men, and because prisons are
often built in remote rural areas, women are frequently sent hundreds of miles from their children.
According to a 1997 survey of female state inmates by the Bureau of Justice Statistics, more than half the
women had never received a visit from their children, mainly because of the cost and difficulty of travel.
Phillip went a year between visits before going to see his mother in May 1999 in a borrowed car. Natasha
had saved up to buy a car so she could take her siblings to see their mother, but the transmission went
and she can't afford to fix it, so Phillip does not know when he will see his mother next.
The fact that his mother was convicted when he knows her to be innocent, Phillip says, has made it
difficult for him to hold onto the values with which he was raised. "At the time, it made me feel like right
was just wrong," he says. "I learned that no matter who you are and what you did, people don't really
care. If somebody says you did this, they're gonna go by that. It's not right. I hope they just quit the
conspiracy laws sooner or later."
Phillip is far from alone in that hope. New York, which launched the mandatory-sentencing craze in 1973
with the passage of its Draconian Rockefeller drug laws, is now reconsidering those laws. Rep. Maxine
Waters, D-Calif., has introduced legislation in Congress that would repeal most federal mandatorysentencing provisions. The American Bar Association, the U.S. Sentencing Commission and over threequarters of the federal judges compelled to impose the sentences have all come out against mandatorysentencing laws. Even drug czar Barry McCaffrey has publicly criticized them.
Despite the lack of attention to Clinton's recent pardons, Eric Sterling of the Criminal Justice Policy
Foundation sees them as "a very important action. I am hopeful that Clinton is going to pardon, between
now and when he leaves office, hundreds if not thousands of people," he says. While Clinton has so far
been stingy with his power to pardon and commute sentences, Sterling notes that, historically, presidents
have used that power much more routinely -- President Kennedy, for example, pardoned hundreds of
people convicted under the drug laws of the 1950s.
"The president's duty, expressed in the Constitution, to assure that laws are faithfully executed also
creates a duty to correct injustices," says Sterling. "Just as the president is given the power to veto acts of
Congress, the power of the pardon is one that can correct improper legislation -- which is the case here -improper acts of the judiciary or improper acts by prosecutors.
"I'm hopeful that these pardons will begin to send the instruction to assistant U.S. attorneys around the
country that their zealous pursuit of minor offenders is offensive to the president's sense of justice and the
proper execution of the laws."
So far, however, the Clinton administration has shown little inclination to take on the laws under which the
four pardoned women were sentenced. According to Sterling, the federal prison population has doubled
during Clinton's tenure. The number of female prisoners has risen even more quickly during that period
than has the number of male prisoners. If Clinton did nothing but sign clemency orders for the remainder
of his term, he wouldn't come close to reversing this trend.
One can only hope that the commutations represent not a single feel-good gesture but the beginning of a
much-needed reconsideration of mandatory-sentencing policies. Ideally, Clinton's action would signal a
change similar to the one currently taking place around the death penalty, where the redress of specific
injustices has led to widespread recognition of systemic problems.
In the meantime, Phillip Gaines has a more limited aspiration. "I was just thinking," he says, "that after he
released four women, maybe he could release four more women. Maybe my mom."
http://dir.salon.com/mwt/feature/2000/07/20/conspirators/index.html?sid=901434
The Pied Sniper
Was Lee Boyd Malvo brainwashed into a killing machine?
By Dahlia Lithwick
Posted Thursday, Sept. 25, 2003, at 1:54 PM PT
Lee Boyd Malvo is in big trouble.
Brainwashed?
The 18-year-old is implicated in the shooting deaths of 10 and the injuries
of three others in last October's Washington, D.C.-area sniper spree. He will be
tried first in Virginia for the death of former FBI analyst Linda Franklin; Virginia
was chosen by John Ashcroft specifically because Malvo will be eligible for the
death penalty there, despite the fact that he was only 17 when the shootings
occurred. Malvo is allegedly tied to the crimes by DNA and fingerprint
evidence, handwriting samples, and—oh, yes—a lengthy taped confession in
which he boasts of the killings, laughs at the dead, and says that given the
chance, he'd do it again. The judge in the case, Jane Marum Roush, has
already ruled that this confession, and other incriminating statements Malvo
made to his prison guards, may come into evidence at trial. Jurors will hear two
hours of Malvo giggling and crowing over his murders.
With the trial set to begin in November, the defense strategy, in light of the mountain of evidence against
Malvo, has been to suggest, tentatively at first but with increasing certainty, that the boy was brainwashed
by his co-conspirator, John Allen Muhammad, 42.
Malvo can't have been much fun to defend. He's been petulant and rude, refusing to cooperate with
counsel and doing everything he could to undermine his own case. But in recent weeks, the defense
team has remarked on a turnaround: According to last week's Washington Post, the "real" Malvo has
begun to emerge as he breaks his bond with Muhammad—who's being held and tried separately. Malvo
has begun smiling and talking at trial, engaging his lawyers, and joking with his guards. His attorneys note
that this behavior is reminiscent of Malvo's personality prior to meeting up with Muhammad in Antigua in
2000. It certainly jibes with all the descriptions of his character given by teachers, friends, and family from
Jamaica.
Is it possible, then, that Muhammad took a sweet, bright, attention-starved boy and turned him into a
paramilitary freak, half starving him on a diet of honey and crackers and desensitizing him with video
games, weapons training, and talk of a race war? Can a jury be made to believe that Malvo was suffering
some sort of temporary madness; that he is neither evil nor responsible for his actions, despite the
evident joy he took in assassinating innocents for money?
Malvo's defense team believes so. They will not try to prove he's been brainwashed during the guilt phase
of the trial. They will try to make this argument as a mitigating factor in the penalty phase. In other words,
the fact that he may have been brainwashed by Muhammad will be used only if the boy is found guilty, to
persuade jurors that life in prison, as opposed to capital punishment, is the proper penalty.
The "brainwashing" defense has virtually never succeeded in a criminal prosecution, primarily because
the concept has been largely dismissed both by academics and judges as junk science. Indeed, Patty
Hearst, the most famous proponent of the defense, was convicted and sentenced to seven years in jail.
But here's the kicker: Malvo may actually have one of the most credible claims of brainwashing in legal
history.
In an article on the myth of the brainwashed defense, I explained the scientific basis for the phenomenon
and the reason for its demise. Studies on brainwashing were done in the early 1960s, mostly on former
POWs, and the results published by Edgar Schein and Robert Lifton. Schein and Lifton found that
prisoners—and it was vital that they be captives—could indeed have their minds and values reshaped by
their captors, but only under a very limited set of circumstances. Once removed from the influence of their
jailers, original values and ideas returned.
This was why brainwashing theory broke down in the so-called "second-generation" theory—propounded
by a handful of academics who believed that charismatic cult or religious leaders could control the
behavior of thousands of disciples, without direct influence or captivity, and for long periods of time. In
trying to push the phenomenon of brainwashing further than Schein and Lifton, a handful of scholars had
a few good years on the witness stand, arguing that Moonies and Scientologists were the victims of mind
control, even when they were free to leave or away from the influence of leaders. But there was never
any empirical support for such claims; and the academy has largely written off second-generation
scholarship as bunk. Courts were quick to follow. Today it would be tough to find an expert witness to
defend the proposition that an individual can be brainwashed into committing crimes against his will.
Strangely, Lee Malvo looks like as good a candidate for a first-generation brainwashing defense as there
could be. He meets Lifton's original criteria for POW brainwashing almost exactly: An individual who was
isolated, degraded, forced to perform repetitive tasks, made to renounce earlier values—Malvo converted
to Islam under Muhammad's guardianship—and cut off from external sources of information may actually
claim that he's been brainwashed. And science does not disagree. The question is, will a court and jury
buy it?
There is little doubt that the youth's personality changed dramatically over a two-year period. Accounts of
Malvo's childhood tell of a strikingly different boy than the one on trial. He was overachieving, bookish,
gentle, and so desperate for approval that he stayed after school to carry teachers' bags. He is described
as quiet, deeply Christian, and artistic. Accounts of Malvo's behavior in Muhammad's presence are
equally striking: witnesses say the boy was never more than a few feet from the man, never took his eyes
off him, and was ever watchful and wary. Other witnesses describe a gregarious and chatty Malvo who
would immediately go silent when Muhammad entered the room. He changed his name to John—
Muhammad's first name—hid his Jamaican accent, and called Muhammad his father.
It's also clear that Muhammad isolated the boy from anyone else, including his mother, who traveled to
Washington state in an unsuccessful attempt to reclaim him. Muhammad lived with the boy in shelters, in
cars, and with friends, moving constantly, training him for combat, and prohibiting close connections with
others. Since the boy was no longer in school, Muhammad became parent, teacher, playmate, and pastor
to Malvo. And he turned him into an army of one, training him as a sniper, encouraging him to play hours
of video games, insisting on a demented regimen of health food and exercise, and talking constantly of
the race war in America. Malvo's writings and drawings from prison reveal that his theology and
philosophy were deeply informed by Muhammad's teaching.
The question remains: If this impressionable young man really was yanked from his family and friends,
isolated from outside influences, and inculcated with hatred, greed, and a lust to kill, does that absolve
him of the evil he committed? Does it at least mitigate against executing him? Can one be so enthralled
by another that one's own true self is lost? And if that is the case, is there any reason to believe that the
"real" Malvo could ever be regained? This leaves jurors to make a near-impossible decision about evil
and character, about redemption and free will and determinism; about whether a child can be morally
ruined to the point that he should be discarded. These are more theological questions than legal ones.
But perhaps that is also ultimately fitting for a jury that will be deciding whether a young man will die.
http://www.slate.com/id/2088893
The Brainwashed Defense, Will Walker's, Moussaoui's, and Reid's
lawyers breathe new life into an old tactic?
By Dahlia Lithwick, Posted Monday, Jan. 28, 2002, at 1:20 PM PT
As the first suspects in the terrorist war on America prepare to stand trial, their defenders and apologists
are invoking a word from the Cold War: "brainwashed."
Last week, the father of Richard "Shoe Bomber" Reid insisted his son was "brainwashed." A friend of
John "American Taliban" Walker's told People magazine that Walker had been brainwashed by al-Qaida.
And recently, Slate reported that Abd-Samad Moussaoui, the brother of Zacarias "20th Hijacker"
Moussaoui, believes that, in Britain, his brother "became prey to an extremist brainwashing cult."
What is "brainwashing," and is there any scientific basis for believing it works? Were Osama Bin Laden's
suicide bombers no different from the members of Heaven's Gate or the residents of Jonestown? Is a
"brainwashed" defense open to criminal defendants? Has such a defense ever been used successfully in
an American trial? Is the American belief that cults and new religions routinely brainwash their adherents
rooted in science or is it merely a marker for a Western intolerance toward novel or strange religions? And
might this same public certainty that brainwashing works lead to acquittals in the upcoming terror trials?
British journalist Edward Hunter coined the term "brainwashing" in his 1953 book, Brain-Washing in Red
China , which described Communist techniques for controlling the minds of nonbelievers. American
scholars, journalists, and the public loved the term, and by the time The Manchurian Candidate was
released in 1962, the nation was sold on the possibility that evil Communists could, with the flip of a
queen of diamonds, brainwash normal citizens into becoming robotic assassins. (In 1968, when Michigan
Gov. George Romney claimed that the Johnson administration had "brainwashed" him about Vietnam,
Sen. Eugene McCarthy quipped that in Romney's case "a light rinse would have done.") With the
emergence of strange new cults and sects over the past decades, "brainwashed" has become the best
explanation we can muster to explain seemingly normal Americans' decisions to commit mass suicide or
troll the airports in unflattering saffron robes.
The "Moonies/Scientologists/Hare Krishnas made me do it" defense has received a good bit of play in
American courtrooms over the last 25 year ”much of it successful. The most famous attempt at the
defense came in the Patty Hearst case. Hearst, a 19-year-old heiress to the Hearst publishing fortune,
was kidnapped, held in a closet, and tortured for several months by the Symbionese Liberation Army,
whom she then joined and aided in several armed robberies. (For a primer on the SLA, click here.) At
trial, Hearst's lawyer F. Lee Bailey advanced a "duress" defense, explaining that she would never have
robbed the bank had the SLA not "brainwashed" her. The jury didn't buy it, even when Robert J. Lifton,
one of the earliest scholars in brainwashing, himself testified in her defense. Hearst was sentenced to
seven years in prison.
Hearst's brainwashing claim ultimately succeeded ”not in any court of law, but in the court of public
opinion. Six of Hearst's former jurors joined a massive national movement to commute her sentence, and
John Wayne, one of her many famous defenders, declared, after the tragedy in Jonestown, Guyana: "It
seems quite odd to me that the American people have immediately accepted the fact that one man can
brainwash 900 human beings into mass suicide, but will not accept the fact that a ruthless group, the
Symbionese Liberation Army, could brainwash a little girl by torture, degradation and confinement."
President Carter commuted her sentence, and President Clinton granted her a pardon.
Why does the American public embrace brainwashing as scientific fact, long after the scientific community
and the courts have made it clear that the phenomenon is dubious at best? Perhaps because
brainwashing became so much a part of mainstream popular culture; perhaps because it offers a
"scientific" explanation for religions we cannot accept. Perhaps, more profoundly, if everyone who doesn't
think as we do can be dismissed as "brainwashed," we can keep asserting cultural and religious
supremacy and still appear open-minded and tolerant. Religious crusades are not elitist. They are
medicinal.
There is good empirical evidence to shore up the early claims about brainwashing, primarily in studies
done mostly on former POWs by Edgar Schein and Robert Lifton in the early '60s. Prisoners could indeed
have their minds and values shaped by their captors. According to Lifton, the standard requirements for a
really sparkling clean brainwash include: isolation of the subjects, control over their information,
debilitation, degradation, discipline and fear, peer pressure, performance of repetitive tasks, and
renunciation of formerly held values. (All of which sounds eerily like law school to me.)
Where the empirical proof really broke down, however, and where the anti-cult movement unleashed a
witch hunt, was in the "second-generation" brainwashing theory: a branch of scholarship trying to prove
that subjects could be brainwashed without physical coercion. Most of the early brainwashing scholars
disavowed these applications of their theories in non-coercive settings. It requires a long, airy leap of logic
to believe that a subject released from physical restraint will continue to obey the commands of her
captors for protracted periods of time. But two Berkeley-based scholars ”sociologist Richard Ofshe and
psychologist Margaret Singer ”made names for themselves in the '80s with theories of "coercive
persuasion," wherein manipulation, exploitation, and misrepresentation by cult leaders can substitute for
physical coercion. This became the most satisfying public explanation for why Americans were joining the
Rev. Sun Myung Moon's Unification Church or the Krishnas. And while the second-generation, noncoercive theory of brainwashing is almost entirely without empirical support, Ofshe and Singer managed
to corner the expert witness market in a host of post-Jonestown, post-Cold-War brainwashing cases.
The vast majority of brainwashing cases are civil. Some concern the "deprogrammers" of the
brainwashed. Mostly, they involved former cult members suing the groups for torts including false
imprisonment, intentional infliction of emotional distress, or fraud. Some have resulted in multimillion
dollar jury verdicts. But every dog has its day, and all junk-science has its limit. The watershed for the
second-generation brainwashing defense (and the end of Ofshe's and Singer's impressive run as
unbeatable expert witnesses) came in 1990 with U.S. v. Fishman , a California federal criminal action in
which a defendant put forth an insanity defense in a mail fraud case, alleging that he'd been brainwashed
by the Scientologists. The judge tossed the brainwashing testimony, holding that the views did not
represent the consensual view of the scientific community.
More and more, the idea of brainwashing is dismissed by courts as either Cold War hysteria or the anticult mania of the '70s and '80s. With their new affection and tolerance for cults (now respectfully renamed
"new religious movements") and a dearth of empirical evidence that evil geniuses can force innocents to
do what they would not normally do, the scientists aren't around to testify. The most dramatic
phenomenon revealed by the current empirical evidence is that something called "social influence" exists.
(This is more or less the same thing that makes you buy the Ralph Lauren turtleneck instead of the one
from Sears.) And the scientists themselves have tended to break down over definitions, politics, and
empirical evidence (click here for an excellent account of the meltdown over brainwashing that has beset
the academy of late).
But still, Americans love the idea of brainwashing. In much the same way that we clung to myths about
ritual satanic abuse of schoolchildren long after the McMartin preschool case was proved a sham, we are
simply sold on the notion that brainwashing works. Studies show American jurors overwhelmingly still
believe brainwashing is a highly potent psychological phenomenon. In one much-cited 1991 survey of
383 random subjects, nearly 78 percent believed brainwashing can occur even if the subject "is not
actually held captive against their will." In a 1992 survey of 1,000 random New Yorkers, about 43 percent
of respondents believed that brainwashing is absolutely necessary to make someone join a religious cult.
What is it about the Moonies or the Branch Davidians that makes Americans so certain that their
adherents must have been brainwashed into compliance? First, brainwashing offers a clinical/scientific
explanation for frankly un-American levels of religious fervor. Some religion is nice; the sort that comes
with a tasteful choir and topical sermons. But head-shavings, communes, and the eating of too many
legumes make us nervous. So does mass suicide. Second, Americans place a high premium on personal
freedom, such that any religion that restricts movement, choices, or association, smacks of cults to us.
Believing in brainwashing allows us to consider our own religious beliefs normal, even rational, while
allowing us to dismiss Jehovah's Witnesses, Mormons, and Scientologists as zombies. We can feel sorry
for them and still go to church on Sunday.
If the American public is comfortable with the notion of brainwashing as the best explanation for religious
zealotry, it remains to be seen whether we will also accept that fundamentalist Islam is merely a "cult"
that's subjected its members to relentless brainwashing. If the Sept. 11 bombers are just so many
"Manchurian candidates" and John Walker just a California kid who got brainwashed, juries may have a
tough time finding them guilty.
Our ambivalence about fundamentalist Islam is clear. We can't decide whether Muslim fundamentalists
are an enemy to be vanquished or a cult to be "deprogrammed." A search of Nexis since Sept. 11 reveals
hundreds of references to Islam in tandem with brainwashing, including numerous assertions that all
madrasahs are Islamic mind-control factories. Already the cult experts are arguing that Walker, Reid, and
Moussaoui are victims of extremist cults. Rick Ross, a lecturer, deprogrammer, and expert witness on
cults recently told Time magazine that that the Taliban "is an apparitional cult." Former Moonie and author
Steven Hassan claims to see unmistakable signs of brainwashing in both Walker and Moussaoui, both of
whom apparently underwent radical personality changes upon converting to Islam.
In the terror trials of 2002, defense attorneys will be hard pressed to find a judge who will still recognize a
second-generation brainwashing specialist as an expert or a brainwashing expert who would even testify
that Bin Laden can remotely control the minds of thousands of innocent young men. The real problem is
that jurors, and the public, may still believe it regardless. A perfectly credible legal narrative can be
crafted to play on the same sympathies that ultimately freed Patty Hearst: Reid, Moussaoui, and Walker,
young converts to a religion that is a vicious brainwashing cult. Your Honor, Osama made them do it.
If anyone has been brainwashed, it's the millions of Americans who still view new, radicalized, or unusual
religions as "cults" and their leaders as masters of mind control. We must try these terror cases free from
the patronizing assumption that strange, even crazy beliefs are necessarily products of illness or undue
influence. The proper word to describe a savage act committed at the behest of a charismatic lunatic is
not "brainwashed." It's evil.
http://www.slate.com/id/2061166/
The bad seed-victim debate By Fiona Morgan
March 03, 2000 | SAN FRANCISCO -- When a 6-year-old boy fatally shot his first-grade classmate this
week in a Flint, Mich., school library, the nation was once again rocked by a shocking act of violence
committed by a troubled child.
But in the grim, familiar litany of public recrimination -- neglectful parents, overcrowded schools, calloused
kids -- there was one surprise: The county prosecutor said right away that the child should not be charged
with the crime. "He is a victim in many ways," prosecutor Arthur Busch told the press. "We need to put our
arms around him and love him."
Love from prosecutors toward young offenders is scarce these days. It was in Michigan where Nathaniel
Abraham was convicted as an adult in the murder, at age 11, of a stranger, sitting in the courtroom at a
defense table where his feet couldn't touch the floor. In Northern California, just four years ago,
prosecutors in Richmond charged a 6-year-old with attempted murder in the nearly fatal beating of an
infant neighbor. Ultimately, the D.A. dropped the charges on grounds that the disturbed boy could not
stand trial, but he remains the youngest child ever charged with so serious a crime.
And on the California ballot next week is Proposition 21, a ballot initiative that would make sentences for
juvenile offenders over the age of 14 harsher, by giving prosecutors the power to move cases classified
as "violent" felonies (such as first degree murder and rape) into adult criminal court. It would also
mandate life in prison for teens convicted of "gang-related" home invasion robberies, car-jackings and
drive-by shootings.
The proposition reflects the national pendulum swing that has led to kids like Abraham being tried as
adults, and many states routinely putting teens in prison with adult criminals. But the pendulum may be
swinging back. Polls are showing Prop. 21 is in trouble with voters. In early February, 41 percent of state
voters in a Field poll had decided against it, with only 24 percent in favor and 35 undecided.
A more recent poll found somewhat more support for the measure, but it varied enormously depending on
how the pollster described the initiative. Even when pollsters used language that focused on stiff
punishment for gangs, only 55 percent were in favor. The lack of support for Prop. 21 might indicate that
voters are having second thoughts about the lock 'em up approach to crime when applied to kids.
Prop. 21 certainly has a respectable pedigree. It is the brainchild of former California Gov. Pete Wilson, a
Republican, and it has the endorsement of current Democratic Gov. Gray Davis and state law
enforcement. Wilson was key in passing California's famous "three-strikes-and-you're-out" law, which
automatically sentenced third-time felons to 25-years-to-life in prison. A whopping 72 percent of voters
approved the three-strikes law.
Compared to three strikes, support for Prop. 21 is relatively low. If it fails, it will be the first major anticrime initiative to be rejected by California voters. And just as Prop. 13, the property-tax-cutting initiative
of 1978 heralded a national tax revolt, it's possible that voters' indifference to Prop. 21 could reflect a
weariness with expensive, get-tough solutions to crime -- especially when applied to kids.
"If it gets enough media attention, this could be the first beatable get-tough" proposition, says crime
expert Franklin Zimring of the University of California at Berkeley. "The people who usually sit on the
sidelines in these kinds of get-tough campaigns" -- including teachers unions, the PTA and the League of
Women Voters -- have come out publicly against the initiative, he notes. "There are genuine limits to the
gullibility of the California initiative voter that Prop. 21 seems to be ignoring."
One explanation for Prop. 21's troubles is the cost to taxpayers: $300 million a year, plus one-time costs
of $750 million. The money would go toward court costs and the construction of more prisons.
The proposition covers a lot of ground. It unseals the records of minors who have committed certain
crimes. It would restrict the authority of parole officials to decide whether juveniles should be held or
released before a court hearing. Especially controversial is the new class of "gang-related" offenses. For
instance, it would add years to offenses found to be gang-related, make gang recruitment a serious
crime, expand the use of wiretaps against suspected gang members and force people convicted of gang-
related offenses to register with local authorities. Some groups say the definition of gangs is too loose
and unfairly targets minorities.
The California Youth Authority, California Juvenile Court Judges and Chief Probation Officers of California
are against it. And the ambivalence of district attorneys suggests prosecutors might not even want the
additional power. The state D.A.s' association is sponsoring Prop. 21. But in Los Angeles, where the antigang provisions would be likely to have the most impact, D.A. Gil Garcetti has declined to take a position
on it. According to a spokeswoman for his office, "There are things he likes about it and things he doesn't
like about it." The D.A. of traditionally conservative San Diego has also declined to take a position,
offering the same explanation.
Victims' rights advocates are among the initiative's strongest supporters. Maggie Elvey is the assistant
director of Crime Victims United, and a major proponent of Prop. 21. (Elvey's husband was murdered
seven years ago, and she has publicly grieved that his teenage killer, who was convicted as a juvenile,
will be out of jail with a sealed record at age 25.) In Elvey's mind, Prop. 21 will act as a deterrent, teaching
kids without a strong sense of right and wrong that there are real consequences for their actions.
She complains that groups such as the ACLU are using "scare tactics," giving kids misinformation about
the provisions of the bill and how it will be used. "We are not trying to put all of the young ones in prison
with the big boys," she says. Juveniles in adult facilities are housed separately from adult criminals,
according to Wilson and other proponents. "They have all of these kids believing that we're going to pick
them up if there's three in the crowd dressed strange. That's a little unconstitutional. I don't think that's
going to happen."
Even Elvey admits, though, that the gang-related provisions of Prop. 21 are open to a lot of interpretation
by police and prosecutors. "I don't know how they're going to tell if they're gangs. There are parts of this
thing that are a little crazy," she says, "but that's what happens when you can't get the legislators to do
good legislation and the public has to come along and write up this kind of thing."
Juvenile judges have the ability to try kids 14 and older as adults, and in cases of rape and murder,
frequently do. But Davis argues that Prop. 21 streamlines the system, mandating adult trials for certain
offenses and enabling prosecutors to move the cases to adult court, without judicial review.
As of 1997, 15 states already had laws on the books that allowed prosecutors to file some cases directly
to adult court. According to Justice Department statistics released this week, the number of people under
18 sent to adult state prisons more than doubled between 1985 and 1997, serving an average of five to
eight years for such crimes as rape, robbery and drugs. The total number is still proportionally small -7,400 teens in adult jails in 97.
But the increase comes at a time when the number of crimes committed by teens is going way down. The
1998 Justice Department report says the juvenile violent crime arrest rate is at its lowest since 1987. And
it comes despite unanimous research that shows serving time in a state facility is much more likely to lead
to repeat offenses than juvenile facilities. Wilson calls the juvenile system "outmoded," but it remains the
only correctional model that is geared heavily toward rehabilitation.
Even some conservatives are uncomfortable with the measure.
"Frankly, I don't like this proposition," says Michael Warder, vice president of the Claremont Institute, a
conservative public policy research organization in Sacramento. "I'm generally a tough, law-and-order
kind of guy. But I think this goes too far. For the full weight and force of the state of California to come
down on a 14-year-old, I think that's a little bit over the top."
Warder is generally in favor of the "three-strikes" law because it puts away "incorrigible" repeat felons.
And he believes that punishment is just as important a part of the justice system as deterrence and
rehabilitation.
But Prop. 21 makes him uneasy, because it takes discretion over sentencing out of the hands of judges.
"It gives the state greater and greater power and I don't know what the checks would be on that power."
Warder also believes this power marks government interference in families. "This initiative, in a way,
would put aside the obligations of the parents and have the state intervene directly in family relations."
As for the gang provisions, even Warder acknowledges that Prop. 21 would disproportionately affect poor
kids and ethnic minorities. "I don't generally make this kind of argument, because personally I find it
repugnant, but nonetheless ... I think there is disparate impact on the basis of race and economic status.
I'm not a big fan of gangs, but on the other hand you have to look at the consequences of this kind of law,
and who does it seem to be targeting."
National numbers reflect this as well: While there are few statistics on the class of juvenile offenders,
according to the Department of Justice, 58 percent of teenagers entering state prisons were AfricanAmerican, though they make up only 12 percent of the state's population.
And not all victims rights groups are in favor of Prop. 21. Mark Klaas became one of California's best
known advocates of victims rights, after his 12-year-old daughter, Polly, was killed by a repeat offender.
Klaas has supported measures to make sex offenders register with local officials after they've served their
time. But he opposes Prop. 21 because "it does not have a prevention component to it. By completely
focusing on trying young people as adults, for whatever crime, we're just going to continue to fill up our
prisons and throw away the youth of America."
The national move to get tough on crime that Prop. 21 represents was spurred in part by the violence of
the crack epidemic, and in part by simple demographics: A rising teenage population was expected to
lead to rising teenage crime, along with a new generation of so-called superpredators, calloused by
parental neglect, media violence and bad schools.
The problem was "the numbers were never there," says Zimring, who has studied crime statistics for 30
years. In fact, Zimring says, while alarmists were testifying to Congress about superpredators, the juvenile
crime rate was dropping by half. Statistics from the Justice Department and the non-partisan think tank
RAND show juvenile arrests have gone down -- both nationally and in California.
"What it indicates," Zimring says, "is the aptitude for catastrophic error that we have when we project our
fears on to future patterns of violent crime."
"Juvenile crime is a success story," says Peter Greenwood, a senior researcher at RAND. "The
consensus for anybody who looks at the data is that crime has been going down much more for juveniles
than it has for anybody else."
While RAND does not take positions on political initiatives, Greenwood says he can't make sense of Prop.
21 or the numbers being used to support it. "Prop. 21 is written as if we're in some sort of wave of juvenile
crime." In fact, he says, the opposite is the case: "We had a wave of juvenile homicide and violence that
peaked around 1991 and '92 and it's gone down dramatically."
"A law that gives prosecutors more power just doesn't make a whole lot of sense given that the current
systems seem to have worked very well," Greenwood says.
But it may be that the public understands its fears about superpredators were never well-founded.
National surveys show that the get-tough-on-teens approach might be giving way to a growing concern
for the welfare of teens. A poll conducted last July by Opinion Research Corporation International found
that 90 percent of people believe America could reduce juvenile crime by investing in prevention, and 81
percent felt that prevention programs were equally as important as locking up young criminals in
combating teen crime.
"People are really torn about these things," says Michael Decorsey Hinds, a vice president of Public
Agenda, a national public opinion think tank. Hinds has found in his research on crime and public opinion
that "Americans support a blend of solutions that cross ideological lines. Some are conservative in saying
that it's more important for the government to be tough on crime than it is to protect the rights of the
accused."
Hinds still believes public opinion favors retribution -- even when the criminal is a juvenile. "The whole
attitude of 'three strikes and throw away the key' is creeping backwards in age," he says. And while more
people support prevention programs and gun control, they are more willing to spend money on building
new prisons than on rehabilitation.
Zimring is more optimistic. "The folks who won the 'war on crime' now want to bring it to the juvenile court,
and they're having more trouble than they thought," he says. "People are funny about kids -- they're
ambivalent. The wells of public ambivalence and mixed feelings around make this issue extremely
interesting."
http://dir.salon.com/news/feature/2000/03/03/crime/index.html?sid=658703
Unlock 'Em Up, A lock-'em-up hard-liner makes the case for probation.
By John J. DiIulio Jr., Posted Saturday, Dec. 21, 1996, at 12:30 AM PT
No one--at least, no one in elite policy-wonk circles--is a bigger fan of
incarcerating known, adjudicated adult and juvenile criminals than me.
No one has written more over the years about the cost-effectiveness of
incarceration as measured both in terms of its crime-reduction value
and in terms of doing justice. Still, when it comes to the search for
rational, workable crime policies, it's time to admit that the brain-dead
law-and-order right is no better than the soft-in-the-head antiincarceration left. More and more conservatives now favor abolishing
parole, sharply curtailing probation, imprisoning every adult felon for
his or her entire term, and warehousing juvenile offenders in adult jails.
The prudent response, however, is not to abolish probation and parole,
but to reinvent them.
First, let's get crystal clear on the grim facts about crime, prisons,
probation, and parole. Be giddy about recent drops in national crime
rates if you wish, but each year Americans still suffer some 40 million
criminal victimizations; about a quarter of these are violent crimes.
Only about one in 100 crimes actually results in anyone getting caught,
convicted, and sentenced to prison. Most felony defendants are repeat
offenders; yet, most felony defendants are sentenced not to prison but
to probation.
Likewise, a half-dozen recent studies prove beyond a reasonable doubt what every veteran policeman
knows: Most prisoners are not petty, nonviolent thieves or mere first-time, low-level drug offenders. Yet,
most of these hardened criminals are still paroled well before they have served out their latest sentence
behind bars. On any given day in America, there are three convicted adult criminals out on probation or
parole for every one in prison--and many of these are indistinguishable (in terms of their violent and
repeat criminal histories) from those who remain in prison. As for juvenile offenders, between 1989 and
1993, the number of adjudicated juvenile cases that resulted in probation rose by 17 percent. The number
of probation cases involving a "person offense"--such as homicide, rape, robbery, or assault--soared by
45 percent.
Literally dozens of careful studies document that probation and parole are, to put it mildly, failing to
protect the public. Nearly half of all state prisoners in 1991 had committed their latest crimes while out on
probation or parole. While formally "under supervision" in the community, their "violations" included more
than 13,000 murders, some 39,000 robberies, and tens of thousands of other crimes. More than a quarter
of all felons charged with gun crimes in 1992 were out on probation and parole. Here, too, what's true for
the revolving-door adult system is even more true for the no-fault juvenile system. In many cities, for
example, most cases involving violent older teen thugs who get referred to adult court result in probation.
Kids plea bargain, too.
Why are the adult and juvenile probation systems so poor, and what,
realistically, can be done to improve them--soon?
A big part of the answer is that we spend next to nothing on the systems, and
get about what we pay for. Take adult probation. Joan R. Petersilia, former
director of RAND's criminal-justice-research program, has calculated that we
currently spend about $200 per year per probationer for supervision. "It is no
wonder," she notes, "that recidivism rates are so high." Likewise, Patrick A.
Langan, a statistician with the U.S. Justice Department, has found that more
than 90 percent of probationers are supposed to get substance-abuse
counseling, pay victim restitution, or meet other requirements. But about half do
not comply with the terms of their probation. Probation sanctions, he concludes,
"are not rigorously enforced."
But how could they be properly supervised by overworked, underpaid probation
officers with scores of cases to manage? As Petersilia argues, even probationers who are categorized as
high-risk offenders receive little direct, face-to-face oversight. If "probationers are growing in number and
are increasingly more serious offenders," she advises, "then they are in need of more supervision, not
less. But less is exactly what they have been getting over the past decade."
Ditto for juvenile probation. Over half of street-level juvenile probation officers earn less than $30,000 a
year. In big cities, the probation caseload of serious and violent juvenile cases has increased rapidly. In a
national survey, probation officers admitted that their average urban caseloads were at least 25 percent
higher than they should be.
To reinvent probation, we will need to reinvest in it. More money, more agents, and closer supervision are
just the first phase. Equally important is the type of creative and critical thinking represented by Boston's
probation chief Ronald P. Corbett. Among other innovations, Corbett has teamed local probation officers
with local police officers. Patrolling the streets together, they have cut crime. Corbett has also got
probation officers to work with inner-city clergy on a wide range of crime control and prevention initiatives.
In Philadelphia, the district attorney's office has developed a no-nonsense
program in which volunteers from the neighborhoods where the juveniles
committed their crimes hear the cases, set terms, and monitor
compliance. Run for the district attorney's office by veteran probation
officer Mike Cleary, the citywide program boasts an 80 percent success
rate, costs little to administer, and holds kids (including hundreds of
juvenile felony offenders) accountable.
"The value of Philly's program," observes former New Jersey Superior
Court Judge Daniel R. Coburn, "is that it separates the minnows from the
sharks, then holds the minnows accountable and hence less likely to
become sharks, let alone become the predatory Great Whites we must
incarcerate." He should know. Coburn pioneered two major and highly
successful programs in New Jersey. One is the state's Enforcement Court, which goes after people who
remain on probation because they failed to pay fines and restitution, collects the money, restores the trust
of crime victims, and brings literally millions of dollars into state coffers that can be used to beef up other
justice programs. The other is the Sheriffs Labor Assistance Program (SLAP), which puts low-level
criminals to work (for real!) cleaning up parks, painting public buildings, helping out in nursing homes, and
more. "Fail to do exactly what you're required to do on SLAP," Coburn declares, "and you get slam--as in,
see you in jail for sure."
Admittedly, parole is a tougher reinvention nut to crack. In the late 1980s, I myself had expressed hopes
that intensive-supervision parole programs could protect the public and its purse. But the best studies of
intensive-supervision programs for high-risk parolees soon found that the programs cut neither recidivism
nor costs. So for the last several years I have argued in favor of some types of "three strikes and you're
out" laws. And I continue to strongly favor a no-parole policy for some categories of violent and chronic
criminals.
But the most interesting parole-reinvention idea I've encountered to date comes from Martin Horn,
formerly head of New York State's parole authority and presently commissioner of prisons in
Pennsylvania. As Horn argues, in most cases there is relatively little that parole agents can do to keep an
offender who is determined to commit new crimes from committing them. The flip side is that parolees
who want to go straight often can make it if they are literate, civil, and can stay off drugs, remain sober,
and get a job. But parole agents often waste time chasing the bad guys rather than helping the good. And
in many states, the laws perversely limit a parole agent's discretion. For example, I've heard many agents
complain of having to revoke the parole of guys who failed a drug test but who were not, in the agent's
best judgment, doing anything more than getting high. As one agent confided: "A parolee of mine is OK
and is looking for a job. He pees in a bottle and comes up dirty, and I have to send him back inside. But a
real predator I know is using, selling, and almost certainly doing other crimes. He stays on the streets
unless I catch him red-handed--and I won't. It's insane."
Horn's radical notion is to reinvent parole on the basis of a "personal responsibility" model. A released
prisoner would be given the equivalent of a parole services voucher. For a fixed period of time--say two
years--he can use the voucher to seek out education, job training, drug treatment, or other services from
state-selected providers. If he wants to help himself, he can. If not, he's on his own. Do a new crime
during this period--bite the hand that is offering you a way to help yourself--and you do the time for the
crime, plus a year or two.
It's time to get behind serious efforts to reinvent probation and parole, and time to debate fresh ideas.
After all, we are not going to put every convicted adult and juvenile felon behind bars and keep him or her
there--nor should we.
http://slate.msn.com/id/2409
Ex-Con Nation. We locked 'em up. They're getting out. What do we do
now?
By David Plotz, Posted Friday, June 15, 2001, at 5:30 PM PT
Every year, the United States sets two prison records—one we talk
about, and one we don't. Our mania for incarceration is common
knowledge: The number of state and federal prisoners has quadrupled
to 1.3 million in the past 25 years. But Americans have paid no attention
at all to the backdoor of the prison. Inmates are arriving at an
unprecedented rate, but they are also leaving at one.
This year, American prisons will release more than 600,000 inmates, up
from 170,000 in 1980. (To put it another way, a city with a population
larger than Washington, D.C., leaves prison every year. And this does
not even count the hundreds of thousands of lesser criminals who finish
short jail sentences.) We lock them up, but we don't throw away the key.
For all the hoopla that surrounds the death penalty and life sentences,
only a teeny fraction of inmates—fewer than 4,000 per year—actually
die in prison. Those who study "prisoner re-entry" have a new catch
phrase to describe prisoners returning home: "They all come back."
Prisons still admit about 50,000 more offenders than they release, which
is why the total census keeps increasing. But the growth rate is slowing,
and by 2005, prisons may be springing as many people as they enroll.
By 2010, according to University of California, Irvine, criminologist Joan
Petersilia, annual releases may reach 1.2 million.
(The United States is becoming an ex-con nation. According to preliminary estimates by researchers
Christopher Uggen, Melissa Thompson, and Jeff Manza, 5 million Americans are serving or have served
prison sentences. That translates into 5 percent of American men, and 15 percent-20 percent of black
men. They also estimate that 13 million people—including one-third of black men—have been convicted
of a felony.)
Are the released felons more dangerous than when they went up the river? According to the best studies,
the surge in incarceration is responsible for one-quarter of the '90s crime drop. (Economics and
demographics are key reasons for the other three-quarters.) Does this mean the crime rate will spike as
all these folks return home? "That is the $64,000 question," says Urban Institute senior fellow Jeremy
Travis, a leading scholar of prisoner re-entry. "And no one has the answer."
Surprisingly little is known about prisoner re-entry. Ex-cons are extremely difficult to study, because
they're transient and suspicious of authority. Almost no one has paid attention to them for 20 years. The
fascination with prisoner rehabilitation that flowered a generation ago has withered. Vocational and
educational programs didn't cut recidivism. Many parole boards, which had vast discretion to free
prisoners early, were stripped of their power after being attacked from both the left (for being too hard on
minorities) and the right (for being too soft on everyone). And the political climate chilled for prisoners, as
the crime declines of the '90s confirmed the popular belief that we should worry more about putting them
away than helping them out.
Still, enough information exists to conclude that ex-cons are dangerous to society and to themselves. In
the mid-'80s, a major national recidivism study—the only one that's ever been conducted—found
incredibly high rates of re-arrest and reconviction. Nearly two-thirds of ex-inmates were re-arrested on
serious charges within three years, and 41 percent were reconvicted and returned to prison. A tracked
group of 68,000 ex-offenders committed more than 300,000 felonies and misdemeanors in the three
years after release.
There are many reasons to believe that today's army of released prisoners poses even more danger and
faces even worse prospects than the smaller cohorts of the past. Ex-cons spend more time in prison than
they used to. According to "From Prison to Home," a report published by the Urban Institute this week,
prisoners released in 1998 served 27 percent longer than those released in 1990—28 months versus 22
months. Longer sentences, contends the Urban Institute's Travis, weaken the social and economic ties
that may shield prisoners when they return to society. The longer you serve, the less contact you have
with family, friends, and employers; the more your job skills deteriorate; the more your social network
consists of other criminals.
Prisons do less now to prepare inmates for life outside. Vocational and educational programs have been
cut and inmate participation in them has dropped. Drug treatment is even scarcer than it used to be.
Though the proportion of inmates with drug problems has remained steady, the percentage receiving
treatment plunged from 25 percent in 1990 to only 10 percent in 1997. States have also gutted parole.
"Truth-in-sentencing" laws—most states now require violent felons to serve 85 percent of their
sentences—mean that more and more prisoners are serving most of their sentences in prison then are
released without any restrictions. More than 100,000 prisoners were released unsupervised last year.
Researchers suspect that unsupervised releasees have harsher re-entries than those on parole. Not that
parole is so effective: Budgets have contracted, and the average parole officer monitors 70 felons, up
from 45 a few years ago. Other transitional institutions, such as halfway houses, have also weakened.
American society remains hostile toward ex-cons, and new laws and surveillance techniques make it
easier to be tough on returning felons. Employers can quickly check criminal records and deny
employment to former inmates. Some states have banned ex-prisoners from public employment and
public housing. The declining economy will hit ex-cons hard: Since they are the most marginal
employees, they are first to lose their jobs in a recession. More and more live in the poorest areas. The
Urban Institute says that two-thirds of inmates return to "core" urban counties (where jobs are scarce), up
from only half a decade ago. (California found that 70 percent-90 percent of its parolees are
unemployed.)
Returning prisoners may be more dangerous than they used to be. An enormous number are violent:
140,000 of the 1998 graduating class are violent criminals, up from 75,000 in 1985. More ex-offenders
than ever suffer mental illness. And ex-cons pose a health danger, too: Prisoner rates of HIV infection,
tuberculosis, and hepatitis C run five to 10 times the national average. (According to the Urban Institute,
in 1997, one-quarter of all Americans with HIV/AIDS were released from prison or jail.) Prisoners return
as disease vectors as well as crime vectors.
Not all the data is awful. Releasees average 34 years old, up from 29 years old in the '70s. (They are
older because they are serving longer sentences, and because the big baby boom cohort drags the
average age up.) Felons commit fewer crimes as they get older, so by locking up crooks longer, we may
be naturally aging them out of a life of crime. The stats about violent ex-cons are also ambiguous. Though
record numbers of violent offenders are getting out this year, they actually represent a lower percentage
of released inmates—only one-quarter of all releasees, down from 32 percent in 1985. (The percentage
of violent offenders has dropped because many more releasees are nonviolent drug offenders.)
The best news for ex-cons may be that people are interested in them again. The Urban Institute's Travis
speculates that the record crime drop, the strong economy, and perhaps even the success of welfare
reform have convinced Americans that ex-prisoners are worth worrying about. The public policy
community is seized with passion about this. George Soros' Open Society Institute has been sponsoring
re-entry studies, as have at least two other major foundations. The Urban Institute's "From Prison to
Home" is the first comprehensive prisoner re-entry report in years; the General Accounting Office is
publishing findings on federal re-entry next week, and the Department of Justice will release the first
major recidivism study in 15 years this fall. Congress appropriated nearly $100 million this year for pilot
re-entry programs, and the Senate Judiciary Committee is considering a new bill to assist federal-prisoner
re-entry.
No crystal answers have emerged yet. (Most articles and reports, in fact, conclude that: "We need further
study …") How re-entry affects the crime rate remains an open question, as does what kind of programs
best help ex-cons. Still, there are a few promising ideas. Researchers had concluded that job training is
useless, but recent work by Shawn Bushway of the University of Maryland hints that job training at least
helps older prisoners, encouraging them stay away from crime and stick to the legit economy. Other
evidence suggests that pre- and post-release drug treatment helps ex-cons live straight. Many
researchers insist that more parole and rigorous supervision of ex-cons will dampen recidivism.
There is a very callous reason why the current effort on behalf of ex-cons may succeed where the
attempts of the '60s and '70s failed. Today's fascination with ex-cons is rooted not in emotion but in
pragmatism. Most researchers and activists don't seem greatly animated by sympathy for prisoners. They
fret about the threat the ex-cons pose to public safety, public health, and general social order, and worry
little about the threat the ex-cons pose to themselves. This is not a grand lefty crusade. No one is
romanticizing what prisoners are like and what reforms can accomplish. Conservatives can embrace this
struggle as easily as liberals. If we're stuck with ex-cons—and we've finally realized that we are, by the
millions—we had better figure out something to do with them.
http://www.slate.com/id/110317
Your Lyin' Eyes, What to do about eyewitnesses who get it wrong.
By Steve Chapman, Posted Tuesday, May 14, 2002, at 1:31 PM PT
On the evening of June 30, 1985, Virdeen Willis Jr., an off-duty official at a
state prison, was drinking with two women in a bar on Chicago's South Side.
As he and his companions left, someone approached and shot him fatally in
the neck. Four days later, police arrested Steven Smith, a convicted killer who
had served time in the facility where Willis worked. Smith denied any
involvement, the police couldn't produce the murder weapon, and no physical
evidence tied him to the crime. About all the prosecution had to offer was a
witness, Debrah Caraway, who said she saw Smith shoot Willis.
The prosecution's case was far from ideal, and Caraway was one of its big
liabilities. The day of the murder, she had been smoking crack. She was
across the street when Willis was shot. Her boyfriend had been considered as
a suspect before Smith was arrested. The evidence suggesting Smith wasn't the culprit was also strong.
The two women who were standing next to Willis when he was shot couldn't identify Smith as the
gunman. Several witnesses said Smith had left the bar with two friends before Willis walked out—not
alone and afterward, as Caraway claimed. But its one witness apparently was all the state needed. Two
different juries found Smith guilty, and both times he was sentenced to death. Today, however, Smith is
not only alive but free: In 1999, the Illinois Supreme Court vacated his conviction for lack of evidence,
barred a retrial, and ordered him released.
Since restoring capital punishment in 1977, Illinois has executed 12 inmates. During that period, 13 other
death-row inmates have been exonerated. This amazing record of fallibility was what prompted
Republican Gov. George Ryan to impose a moratorium on executions two years ago. He also appointed
a commission to examine the Illinois system of capital punishment and to offer proposals for its reform.
Among the recommendations made by the commission in a report released last month were a handful
aimed at a problem that has contributed to several innocent men being sentenced to death: false
identifications by real or alleged eyewitnesses. But as the commission took pains to note, this is a
problem that plagues the entire criminal-justice system, not just death penalty cases.
False eyewitness identifications are certainly most conspicuous in erroneous capital convictions. The
Center on Wrongful Convictions at the Northwestern University School of Law looked at 86 death-row
inmates who were cleared and found that faulty eyewitness identifications played a role in more than half
of them—making them "by far the most ubiquitous factor." More troubling, in 38 percent of these cases,
eyewitness testimony was the sole evidence against the accused.
But this type of evidence is commonplace in all sorts of cases. The spread of DNA analysis has
exonerated many convicted rapists who had been wrongly identified by victims. Of 108 post-conviction
exonerations by DNA identified by the Innocence Project at the Benjamin N. Cardozo School of Law,
some 97 involved sexual-assault and rape charges, and most of these convictions hinged on faulty
eyewitness testimony. Iowa State University psychology professor Gary Wells, who has written
extensively on the subject, says unfounded eyewitness identifications are the greatest single cause of
wrongful convictions.
What makes eyewitness identifications especially mischievous is that they are not only often inaccurate,
but usually they can be quite convincing to juries, regardless of their veracity. One of the most powerful
forms of evidence a prosecutor can deploy is a person who was at the scene of the crime, who will point
to the defendant in court and say, "That's the man who did it." Juries often believe such witnesses even
when loud alarm bells are warning them away. After a woman was raped in her New Jersey apartment in
1992, the victim couldn't find her assailant in police photos. But eight months later, she saw McKinley
Cromedy on the street and implicated him—even though she had passed him over in the original photo
lineup. Fingerprints from her apartment didn't match his; neither did hairs or blood samples recovered by
police. He was convicted anyway and sentenced to 60 years in prison, five of which he served before a
DNA analysis cleared him.
Wrongful death sentences have come to light mainly because capital cases attract special scrutiny, and
false rape convictions have emerged only because DNA analysis can irrefutably clear a defendant. But
it's anyone's guess how many inmates are behind bars on robbery or assault charges because the victim
or an eyewitness identified someone who wasn't actually there. Wells says that every year 77,000 people
become criminal defendants after being identified by a crime victim in a police lineup.
Why are eyewitnesses so prone to errors? They may not get a very good look at the criminal, or they may
have been focused on the gun or knife he was carrying rather than on his face. Cross-racial identifications
are particularly unreliable because people are known to be less adept at distinguishing among members
of other racial groups. Human memory is a malleable commodity, capable of being unconsciously
reshaped to fit the needs of the moment. And crime witnesses are sometimes so eager to see the culprit
punished that they may pin the tail on any available donkey.
In speaking on the subject, Gary Wells sometimes shows a videotape of a man on a roof, his face visible,
apparently putting something in an air shaft. Wells informs his listeners that the man planted a bomb,
shows them mug shots of six different men, then asks how many people in the audience think each of
them was the guilty party. "When I'm done going through the list, virtually everyone in the room has raised
their hand," he says. "Then I say: 'You're all wrong. It was none of them.' " Witnesses, according to Wells,
are usually accurate in picking out the perpetrator if he is present in the lineup. "But if he's not there, they
tend to pick somebody anyway," he says. In that situation, they'll tend to pick whomever looks most like
the culprit.
Other errors are not entirely the identifiers' fault. One man who had seen a Chicago murder picked James
Newsome out of a lineup only after two police detectives asked the witness to consider suspect No. 3.
(Newsome was convicted and then, after he had served 15 years of a life sentence, cleared.) Even if
police are not trying to rig the results, they may inadvertently give signals that nudge the witness toward
the person they've arrested. And if the witness picks the "right" person, a cop or prosecutor may buttress
his confidence by praising the choice. A witness who is tentative at the lineup stage may be absolutely
certain by the time she takes the stand.
It would be too much to ask courts to do without relying at all on a type of evidence that can be very
useful. Fortunately, the criminal justice system doesn't have to choose between abandoning eyewitness
testimony and falsely convicting lots of innocent people. The Illinois death-penalty commission made
several recommendations that would reduce the risk of mistakes. Police lineups, it said, should be
administered by someone who doesn't know which member of the lineup is the "true" suspect, to avoid
tip-offs. Witnesses should be shown each member one at a time, rather than all together, which studies
indicate lowers the rate of false identifications without reducing the number of correct identifications. And
before viewing the lineup, the witness should be informed that the actual criminal may not be in it.
These are not new ideas. The National Institute of Justice, an agency of the Justice Department,
recommended changes along these same lines in a law-enforcement manual it published in 1999. The
reforms are simple, requiring little in the way of money or trouble. But few police departments
have adopted them even though mistaken identifications only ultimately help guilty people go free. New
Jersey mandated these sorts of changes last year, but thus far it's the only state to have done so. Another
antidote is admitting trial testimony from experts who can explain to juries why eyewitnesses can't always
be believed. The federal courts generally allow the defense to call such experts, but few state courts have
followed suit. In most courts, whether or not to allow such testimony is strictly at the whim of the judge.
The case against traditional eyewitness identification practices may sound like it was concocted by
Groucho Marx, who once said: "Who are you going to believe? Me or your own eyes?" But it's time the
criminal justice system recognized that, in some instances, the very last thing you can believe is what you
saw.
http://slate.msn.com/id/2065761
Do Statutes of Limitations Apply to DNA Cases?
Matt Alsdorf
Posted Tuesday, Oct. 12, 1999, at 2:56 PM PT
Last week, the New York Times reported that Milwaukee, Wis., prosecutors had filed rape and kidnapping
charges against a "John Doe" defendant identifiable only by the DNA code of his semen. (DNA, like
fingerprints, is unique to each individual.) The prosecutors took this step because the statute of limitations
for the crime was about to expire and they had no better way of identifying their suspect. In cases where
DNA evidence is located, will statutes of limitations become irrelevant?
Statute of limitations laws require plaintiffs to take legal action within a specified time in order for their
claim to be valid. (Murder is the one crime exempted from statutes of limitations.) The purpose is to
guarantee defendants' Sixth Amendment right to a speedy trial and to ensure that they will not have to
defend themselves against stale evidence. (It would be difficult, for example, to find witnesses to
corroborate an alibi many years after the fact.)
In general, a warrant must be signed--or, in a civil case, a complaint filed--before the statute of limitations
expires. In Wisconsin, where the statute of limitations in rape cases is six years, a warrant requires a
name, an alias, or a physical description of the suspect that would allow him to be arrested with
reasonable certainty. This ensures that prosecutors are charging a specific suspect. It also prevents them
from bringing charges in secret, which would violate Fifth Amendment due process rights.
Some defense attorneys say that allowing prosecutors to charge suspects by their DNA would effectively
suspend the statute of limitations because DNA is recovered in a very large percentage of criminal cases.
And if a suspect can be charged by his DNA, why not charge other John Does by their fingerprints, which
are ubiquitous at crime scenes, too?
The Milwaukee case does not necessarily imply such an expansion of prosecutorial discretion. In most
crimes where DNA comes into play, its presence does not definitively prove guilt. A trace of DNA on a
murder weapon, for example, only demonstrates that the suspect touched it--not that he actually
committed the crime. But the Milwaukee suspect's DNA was extracted from semen swabbed from the
victims' genitals on the nights of the attacks. Arguably, few fingerprints (or other identifiers) would be
sufficiently persuasive for a warrant to be issued on their basis alone. The Milwaukee case would likely
set a precedent only for the small set of cases where DNA is overwhelming proof of guilt. (Defense lawyer
Barry Scheck took this position on CNN's Burden of Proof. Click here to read a transcript of the
discussion.)
It could also be argued that charging an individual by his DNA amounted to charging him in secret
because few people would recognize their own genetic code even if they read it in a newspaper. In any
event, the statute of limitations questions surrounding the Milwaukee case will be moot until prosecutors
apprehend a suspect, match his DNA to John Doe's, charge him with the crime, and his lawyers protest
the prosecutors' strategy.
http://slate.msn.com/id/1003808
Evolutionary Psychology Teaches Rape 101, Judith Shulevitz ,01/13/00
Culturebox was not surprised to learn from the latest issue of The Sciences that evolutionary
psychologists have come up with an answer to the question of why men rape. From the beginning, ev
psych has portrayed the war between the sexes as both natural and inevitable: Men have to spread their
genes around by having sex promiscuously and by whatever means necessary; women lavish their
scarce reproductive resources only on partners who'll stick around to ensure that their children thrive. So
there was nothing startling about the arguments of Craig T. Palmer and Randy Thornhill (author of a
famous study on beauty arguing that throughout world cultures, men and women prize symmetrical
features, which correspond to genetic health): Rape, they say, is either a direct reproductive strategy-what men resort to when all else fails--or the byproduct of other reproductive strategies, "such as a strong
male sex drive and the male desire to mate with a variety of women." What was newsworthy is what the
authors suggests we should do to prevent rape.
Now, before Culturebox reveals Thornhill and Palmer's nifty solution to this age-old problem, she has to
digress a bit on the subject of evolutionary psychology. Here's her beef with it: Evolutionary psychology is
not very good on the aspect of the human psyche she's personally most interested in, which is how
humans are different from animals. Ev psych insists, rightly, that we not ignore our similarities to the
higher- and lower-order creatures, but it's weak on subjectivity, self-awareness, self-consciousness,
whatever you want to call it--on how we explain our tangled mass of hormonal impulses to ourselves. And
yet this ability to reflect on ourselves underlies art, architecture, poetry, government, journalism, and all
the other forms of willed culture and communication that animals don't and can't have. The new
sociobiologists do address complex social institutions--particularly ones that require cooperation--but only
in the broadest of terms. They find ways to boil them down into high-end, unconscious reproductive
strategies.
Some evolutionary psychologists understand the limitations of their field. They know that it has
explanatory power only in general terms, and is useless in the particular case. They know that their
account of human motivation is deliberately reductive--designed to make it easy to grasp large patterns of
behavior--rather than a rich and accurate description of what and who we are. Thornhill and Palmer,
however, are not among these modest evolutionary psychologists. And so they boldly stray into efforts to
modify the behaviors of individuals. They propose a course to teach young men about rape:
Completion of such a course might be required, say, before a young man is granted a driver's
license. The program might start by inducing the young men to acknowledge the power of their
sexual impulses, and then explaining why human males have evolved in that way. The young
man should learn that past Darwinian selection is the reason that a man can get an erection just
by looking at a photo of a naked woman, why he may be tempted to demand sex even if he
knows that his date truly doesn't want it, and why he might mistake a woman's friendly comment
or tight blouse as an invitation to sex. Most of all, the program should stress that a man's evolved
sexual desires offer him no excuse whatsoever for raping a woman, and that if he understands
and resists those desires, he may be able to prevent their manifestation in sexually coercive
behavior. The criminal penalties for rape should also be discussed in detail.
Now, anyone who has read George Orwell or seen A Clockwork Orange can imagine the scene: The
strapping teens slump embarrassed in their seats while evolution instructors lay out their state-sanctioned
definition of human nature. The first message to be drilled into boys' heads is: We believe you're
genetically programmed to rape. The second (and inevitably less impressive) message is: Oh, and by the
way, we're not going to let you do it.
Here's what Thornhill and Palmer propose for women:
Young women should be informed that, during the evolution of human sexuality, the existence of
female choice has favored men who are quickly aroused by signals of a female's willingness to
grant sexual access. Furthermore, women need to realize that, because selection favored males
who had many mates, men tend to read signals of acceptance into a woman's actions even when
no such signals are intended.
In spite of protestations to the contrary, women should also be advised that the way they dress
can put them at risk.
In other words, Thornhill and Palmer are asking the state to say that it believes that men are born rapists
and that women are under an obligation not to dress or act provocatively. Culturebox can see the criminal
lawyers composing their genetic-determinist defenses already: Why, even the state said he couldn't help
himself!
Back in 1994, when journalist Robert Wright popularized the field of evolutionary psychology with his
book The Moral Animal, he wrote an article on ev psych and feminism in which he acknowledged that
evolutionary psychology would be used to "naturalize" sexist behavior. He thought philandering husbands
would be the ones taking advantage of the argument about how cheating was hard to control. He did not
foresee the day when evolutionary psychologists would call for the government to sponsor their theories
in a way virtually guaranteed to generate the very behaviors they are supposed to prevent. But it was a
foregone conclusion that when evolutionary psychology began to focus on genetic predispositions and
majoritarian norms to the exclusion of everything else, some literalists would in fact forget everything else.
They would forget that we are products not just of evolution, but also of what we imagine ourselves to be.
And that if we teach our children to see themselves strictly as beasts, they're bound to act like them.
http://slate.msn.com/id/1004368
Born to rape?
All men are potential sex criminals, say two
evolutionary psychology proponents in a
controversial new book.
------------
By Margaret Wertheim
Feb. 29, 2000 | It was a figure I kept hearing again and again:
50 percent of South African women can now expect to be
raped sometime during their lives. Everywhere I went on a
recent visit to the beautiful troubled city of Cape Town, people
were talking about rape. An elderly neighbor of the couple I
was staying with -- a women in her 80s -- had not long before
been brutally raped in her home, then bound and gagged and
imprisoned in a closet. Her son had found her several days
later, and she died soon afterward in the hospital. After
hearing several not dissimilar stories and endless accounts of
the endemic rape in the squatter camps and black townships, I
began to see that the horrific statistic might just be true.
For the past 30 years, rape has been seen as a byproduct of social conditioning and chaos. According to
this line of reasoning, the situation in South Africa must be explained by a complex set of factors including
the destruction of traditional tribal cultures, 50 years of apartheid and the aftermath of several centuries of
colonial oppression. But a new book challenges such sociocultural accounts of rape and asserts that it is
a built-in adaption that has evolved naturally because it confers a reproductive advantage on the men
who do it.
"A Natural History of Rape: The Biological Basis of Sexual Coercion" sets out a strictly Darwinian view.
Writing recently in the Sciences, the authors, biologist Randy Thornhill and anthropologist Craig Palmer,
state their position bluntly: "We fervently believe that, just as the leopard's spots and the giraffe's
elongated neck are the results of aeons of past Darwinian selection, so is rape." Elsewhere they proclaim:
"There is no doubt that rape has evolutionary -- and hence genetic -- origins." If so, South Africa must be
a hothouse for such genes.
As the latest salvo from the burgeoning "evolutionary psychology" movement, the book is a symptom of
an increasingly heated border war -- the fight over who controls the intellectual territory of human
behavior. Traditionally, the study of what people do and why they do it has been the domain of the social
sciences -- cultural anthropologists, sociologists, psychologists and political scientists -- but increasingly,
evolutionary biologists are claiming that the key to human behavior lies not in our culture and social
structures but in our biological makeup. In the case of "A Natural History of Rape," this is more than just a
rhetorical battle; our whole approach to rape prevention is potentially at stake.
Ground zero for Thornhill and Palmer is the notion that rape is a strategy for helping males to procreate.
Central to their argument is a rather Aristotelian distinction between what they call "ultimate" and
"proximate" causes. While they acknowledge there may be social situations that enhance the likelihood of
a man raping, according to them these must always be understood as just the immediate or proximate
cause of his actions. Underlying all such causes, they say, is the ultimate cause, which is a biologically
built-in mechanism. In other words, whatever cultural conditions prevail, the "true" explanation for rape -and in their view the only legitimate explanation -- is to be found in a man's genes.
In support of their evolutionary view, Thornhill and Palmer point out that the majority of rape victims are
young women at the peak of their fertility and hence of their child-bearing potential. Why? At great length
they explain that Darwinian evolution would have selected for mechanisms in males that would target
these young women for rape. Since, in their view, procreation is the "ultimate" goal driving rape, it is only
logical that this sexual strategy would focus on women at their reproductive zenith.
To corroborate this view the authors assert that studies have proven that it is women of child-bearing age
who suffer the most psychological trauma in the aftermath of rape. Child rape victims and elderly victims
supposedly suffer less because, although they have been physically violated, their reproductive potential
has not been compromised. To quote: "The more a woman's reproductive success would have
contributed to the genetic success of her mate or her relatives in evolutionary history, the greater the
suffering of those individuals is likely to be after she is raped." It is married women in particular, they say,
who suffer most from mental anguish after rape because a married woman risks reprisal or even rejection
from her husband and his relatives.
Feminist arguments against all this will be thrashed out at length elsewhere -- and rightly so -- but what
astonishes me as a veteran science writer and someone trained as a physicist, is what mind-bogglingly
sloppy science this constitutes. To steal a quip from Anthony Lane, I've had bowls of spaghetti that were
more tightly structured than this argument.
For a start, although the authors never say so explicitly, their text is suffused with the assumption that
U.S. patterns of rape are universal. A 1992 national study they cite reported that 13 percent of American
women over the age of 18 say they have been raped. The study did not include any figures for those
under 18, but with this group included the total percentage may actually be higher. The same study
reports that 29 percent of adult women surveyed were under the age of 11 at the time they were raped.
Another study (not cited by the authors) has reported that 45 percent of rape victims were under 16.
Since rape of children and teenagers is on the rise, the researchers I spoke with all expressed the view
that the overall percentage of rape in America was now higher than 13 percent -- perhaps as high as 20
percent, several suggested. But even at 13 percent that's one in seven women, and this is still far higher
than in many other societies, says Peggy Reeve Sanday, an anthropologist at the University of
Pennsylvania who is an expert on rape and the author of "A Woman Scorned: Acquaintance Rape" and
"Fraternity Gang Rape."
As the author of a cross-cultural study on rape in 95 different tribal societies, Sanday stresses that its
incidence varies wildly from culture to culture and there are many societies in which rape is rare. Far from
being the norm, she says, America is one of the most rape-prone of all contemporary cultures. If the
biological imperative to rape is as powerful, and as universal, as Thornhill and Palmer insist, why does its
frequency vary so much from culture to culture?
Mary Cameron, an anthropologist at Auburn University, points to another flaw in Thornhill and Palmer's
thesis: "It doesn't begin to account for male-male rape, or incest," neither of which confer any evolutionary
advantage. If, by the authors' own admission, almost one-third of rapes are inflicted on children under 11,
it is hard to see how reproductive imperatives could possibly be responsible.
Anne Fausto-Sterling, a research biologist at Brown University, questions the very foundation of Thornhill
and Palmer's thesis: "If rape is about reproduction," she says, "then how many rapes end in pregnancy?
I'd want to see the data on that." Such figures are notably absent from "A Natural History of Rape." And
there could well be other explanations for the fact that the majority of rape victims are young women of
peak child-bearing age. After all, most rapists are themselves young men and they may simply be raping
within their peer group.
Particularly woolly is the authors' claim that women of child-bearing age suffer from more psychological
trauma than children or elderly rape victims. In perhaps the book's most eyebrow-raising chapter the
authors try to convince us that this is a proven fact, but I must say I found their "evidence" entirely
underwhelming. Children who have been raped can suffer a lifetime of psychological scarring (in addition
to serious physical harm), and an informal poll of my female friends suggests that for many women there
are few more traumatic prospects than the thought of being raped in the heightened physical vulnerability
of our old age.
Trying to quantify a human being's anguish and measure it against the suffering of another is the sort of
notion that ought to make any sensible scientist run screaming from the room. It's not just that it's
repugnant to say that a raped 7-year-old feels less pain than a raped 21-year-old, it's also simply daft to
insist that any such "objective" comparison can be made. The whole exercise is reminiscent of medieval
attempts to quantify sin.
Furthermore, while the authors are right that married rape victims may indeed fear reprisal from their
husbands or relatives, the very fact that the consequences of rape are so much worse in some societies
than they are in others indicates that we're talking about cultural forces here. For example, religious
women in Muslim communities probably fear this more than secular women in America; it's the difference
between a fundamentalist and a liberal value system -- not biology. Do the authors of "The Natural History
of Rape" have any clear understanding of the distinction? Thornhill and Palmer might just as well assert
that black men in the Bronx feel nervous around the NYPD because they're hard-wired to dread authority
figures.
All of which raises the question of scientific standards. To quote Fausto-Sterling: "When you make a
hypothesis you really need to be able to back that up with data." Yet data is just what is missing from this
book. As with so many other neo-Darwinian accounts of human behavior now being offered by
proponents of the new "evolutionary psychology" movement, Thornhill and Palmer's analysis of rape
relies not on hard evidence, as they would have us believe, but on speculative flights of fancy. Taking a
leaf from Rudyard Kipling, Stephen Jay Gould has dubbed such theories "just-so-stories." (His point being
that they have not a whit more validity than Kipling's fanciful tales of how the leopard got its spots and the
tiger its stripes.)
For most of its 150-year history, evolutionary biology has relied on careful field work, but now, says
Fausto-Sterling, "What you have is this new group of 'evolutionary psychologists' who have very different
standards of proof." Thornhill and Palmer are part of this movement, which is in effect E.O. Wilson's old
"sociobiology" under a new name. Although still in its infancy, the movement is rapidly gaining adherents,
to the consternation of many scientists -- most notably Gould, who has written at length on the patent
inadequacies of much of this work.
The social agenda behind "A Natural History of Rape" comes into clearer focus as the authors claim that
not only is evolutionary theory the only way to understand why men rape, but the only way to understand
how to combat this heinous crime. Having offered their explanation for the former they end their book with
a suggested program for the latter. Since, according to them, all men -- by their very nature -- are
potential rapists, they advocate that young men be required to attend a rape education course before
being granted a driver's license. By stressing the evolutionary basis of rape, these courses would teach
men where such urges come from and thus empower them to resist those urges.
Ironically, by insisting that all men are, in essence, rapists, Thornhill and Palmer are propagating a view
similar to that of feminist extremists like Andrea Dworkin. The authors are aware of the parallel and it
seems to unsettle them, feminists in general being a group they despise. When feminists do make this
kind of claim, the public reaction is almost universally negative -- Dworkin is routinely portrayed in the
media as a half-crazed man-hating harpy -- yet in Thornhill and Palmer's hands the same proposition
magically becomes acceptable. Respectable publications like the New York Times and the Sciences are
now giving this idea a serious number of column inches.
However, according to Thornhill and Palmer, education about rape prevention must also extend to
women. Since evolution has predisposed men to rape, women must understand these innate drives and
the conditions that exacerbate them. In particular, they should realize that provocative clothing and
flirtatious behavior can have violent biological consequences. Here, of course, "A Natural History of Rape"
departs from the Dworkinian theory of who's to blame for rape. Thornhill and Palmer strongly imply that
the rapist is the one breed of criminal who, if sufficiently inflamed by miniskirts and cleavage, can't be held
entirely responsible for his crime.
Dworkin aside, Thornhill and Palmer rail against feminist views of rape throughout their book. Feminists
and other social theorists, say the authors, are misguided, forever driven by ideology. Evolutionary
psychologists like themselves, however, are supposedly clear of this "sin" and are guided only by the
"pure" light of reason.
With increasing vehemency, evolutionary psychologists and their champions (men such as E.O. Wilson
and MIT's Steven Pinker) have reiterated this casting of the social sciences as an impediment to a "true"
understanding of human behavior. In his 1998 book "Consilience," Wilson led the charge by declaring that
in the coming decades most social science departments will be made irrelevant as their subjects of
enquiry are taken over by evolutionary psychology. Thornhill and Palmer reiterate such sentiments; for
them, as for Wilson, there is only one legitimate source of illumination when it comes to human behavior,
and that is Darwinian theory.
Perhaps it's not surprising that in the battle for who gets to define human nature, the proponents of
evolutionary psychology take no prisoners. It seems they can't stop at simply asserting a role for their own
science in understanding human behavior -- they have to annihilate the competition. And it's not hard to
guess that these attacks are the covert motivation for "A Natural History of Rape" itself.
According to Thornhill and Palmer, social science approaches to rape are not simply wrongheaded; by
not being based on a "true" understanding of the problem, such strategies "may actually increase it." We
are offered no explanation of why this may be so, but again and again we are told that as long as the
"social sciences view of rape" prevails the problem will never be solved. Their hearts on their sleeves, the
authors write: "In addressing the question of rape, the choice between the politically constructed answers
of social science and the evidentiary answers of evolutionary biology is essentially a choice between
ideology and knowledge. As scientists who would like to see rape eradicated from human life, we
sincerely hope that truth will prevail."
But what is "truth"? For Thornhill and Palmer, as for most evolutionary psychologists, it is a Platonic
reality untainted by social or political force, a reality that only "pure" and "unadulterated" science can
discover. But how "pure" can science ever be when it's dealing with such complex and politically charged
issues as rape? And how "scientific" can Thornhill and Palmer's own assertions be when they're based on
interpretations of data that can't be subjected to rigorous testing? The history of biology -- when the
science has been extrapolated to explain human behavior -- is riddled with ideology posing as science, as
Fausto-Sterling's "Myths of Gender" and her current book, "Sexing the Body," as well as Gould's "The
Mismeasure of Man" have shown. Ideology posing as science was also at the heart of the eugenics
movement -- both here in the United States, and more devastatingly in Nazi Germany. To paraphrase
philosopher of science Donna Haraway, biology is politics by another name.
The ideological proof in Thornhill and Palmer's pudding is clear from the fact that although they devote
several chapters to berating social scientists' understanding of rape, they give us no analysis whatsoever
of the actual rape prevention programs and strategies arising from that understanding. With mantralike
frequency they tell us that current approaches to rape prevention are wrong, but by what criteria? By what
standards are they evaluating those programs?
It only stands to reason that before you dismiss a program as ineffective you should check its results to
make sure that it doesn't actually work. But despite the cloak of disinterested, objective science Thornhill
and Palmer have wrapped around their work, they're not really interested in the facts or a careful,
cautious weighing of all evidence. The powerful irrational emotions underlying "A Natural History of Rape"
and other similarly reductionist theories indicate how close the mania for evolutionary psychology comes
to religious fundamentalism. While the Christian fundamentalist takes the Bible as his foundational text,
insisting on the most literal interpretation, so these new scientific fundamentalists insist on the most
doggedly literal interpretation of their chosen "text." Here the "words" are not those of the Hebrew
scriptures, but the codons of the DNA chain -- which take on for them an almost divine status.
It goes without saying that Thornhill and Palmer's book does women an immense disservice. But even
more depressing to me is the disservice these authors do to science. Over the past decade the oncegolden image of science has been sorely tarnished and there is a growing perception that scientists are
an arrogant elite, many of whom are out of touch with ordinary people's lives. When books like this offer
up such a sloppy, illogical and downright lazy analysis of such a complex social problem they only help to
fuel that perception. If this is the kind of rubbish that "science" turns out, is it any wonder people are
turning away?
Fortunately, the brand of Z-grade analysis that reigns in "A Natural History of Rape" is not indicative of the
majority of scientific thinking, or of evolutionary thinking, and there are many scientists who find the
current abuses of evolutionary psychology as irksome as I do. Those of us who love science and believe
in its potential have an obligation to expose this nonsense for what it is. If we don't, then who will?
salon.com | Feb. 29, 2000
CORRECTION
In "Born to rape?" by Margaret Wertheim, there was a minor statistical error in the figures about rape
rates in the United States. While the 1992 study cited does not, in fact, suggest that the overall
percentage of rape in America is as high as 20 percent, another study, not cited by the authors of "A
Natural History of Rape," and a number of researchers interviewed for the article indicate that the rate of
rape in the United States may be that high. The article has been corrected.
http://archive.salon.com/books/feature/2000/02/29/rape/
Who says women never lie about
Rape? The "believe the woman" zealotry
promoted by Juanita Broaddrick's defenders is bad for feminism.
BY CATHY YOUNG | Juanita Broaddrick's explosive charge that President Clinton raped her 21 years
ago has elicited the feminist movement's toughest -- and most confused -- response yet to Clinton's
chronic woman troubles. National Organization for Women president Patricia Ireland issued a statement
that managed to be simultaneously too harsh and too weak. Too harsh because it essentially forbade
Clinton to defend himself, denouncing in advance as a "nuts and sluts" tactic any claim that Broaddrick
made the story up or was depicting consensual sex as assault. Too weak because, after endorsing her
"compelling" account, it urged the country to move on and "stop wasting time on unprovable charges." If
you believe we probably have a rapist in the White House, shouldn't you be demanding his resignation?
Clearly, feminists remain torn between loyalty to Clinton -- or at least reluctance to do anything that would
aid his political opponents -- and the belief that a woman who makes an accusation of rape must be
supported.
This is not a dilemma for me. I have never voted for Clinton; as a libertarian conservative, I question most
of his "pro-woman" policies, from affirmative action to the Violence Against Women Act. As for
Broaddrick, I have no way of knowing if her story is true. The allegation is deeply disturbing; so is the fact
that the president of the United States has so little credibility that his denials count for nothing. But I am
also troubled by the "believe the woman" zealotry that may be as bad for feminism as knee-jerk
allegiance to a political ally. This zealotry is now being embraced by some conservatives, who are
uttering the stock feminist lines about how lack of support for Broaddrick will discourage other victims
from coming forward.
Many have said that in 1978, a rape victim -- particularly one involved in an adulterous affair, as
Broaddrick was -- was likely to face disbelief and opprobrium if she came forward. Actually, by then things
were changing rapidly; by 1980, 46 states had "rape shield" laws preventing the use of the woman's
sexual history in a rape trial. But the feminists who helped bring about these changes were undoubtedly
fighting real injustices. Well into the '70s, jurors in rape trials were commonly advised to treat the woman's
testimony with special caution since a charge of rape was "easily made and difficult to defend against,
even if the accused is innocent" (the "Hale warning," based on the dictum of 17th century British jurist
Lord Matthew Hale) and to consider "unchaste character" as damaging to the accuser's credibility or
suggesting consent.
All too often, however, feminist rhetoric merely replaced the old stereotypes that viewed most rape
complainants as scorned women or sex-crazed neurotics with an equally simplistic cliché: "Women don't
lie about rape." Legal theorist Catharine MacKinnon asserts that "feminism is built on believing women's
accounts of sexual use and abuse by men." Some colleges with speech codes have equated talk of false
rape allegations with "discriminatory harassment." Activists may even refuse to believe "victims" who
admit that they lied, suggesting that women recant out of fear or denial, and many bristle when the media
publicize stories of falsely accused men.
Actually, FBI statistics show that about 9 percent of rape reports are "unfounded" -- dismissed without
charges being filed. The feminist party line is that most of these are valid complaints, nixed because the
authorities lack sufficient proof or distrust acquaintance rape claims. But dismissals because of
insufficient evidence usually occur further down the pipeline and are not in the "unfounded" category.
Generally, a complaint is unfounded when the accuser recants or when her story is not just unsupported
but contradicted by evidence.
Measuring false allegations is all the more difficult since policies on unfounded complaints differ between
jurisdictions. A Washington Post investigation in Virginia and Maryland found that nearly one in four rape
reports in 1990-91 was unfounded. When contacted by the newspaper, many "victims" admitted they lied.
More shocking figures come from a study by now-retired Purdue University sociologist Eugene Kanin
published in Archives of Sexual Behavior in 1994. After reviewing the police records of an Indiana town,
Kanin found that of 109 reports of rape filed in 1978-87, 45 -- or 41 percent -- turned out to be false, as
the women themselves admitted after the investigation.
Could real victims have recanted under pressure from sexist cops? The town's police used the
controversial practice of lie detector tests, which have been attacked on scientific as well as political
grounds (the test rarely misses liars but may have a high error rate with truthful subjects). But Kanin also
analyzed police files from two state universities -- where lie detectors were not used and all victims were
interviewed by a female police officer -- and came up with similar results. Moreover, when a specific man
was accused, the details of the recantation always matched his story.
While Kanin cautioned against generalizing from his data, he concluded that "false rape accusations are
not uncommon." It's hard to dismiss him as a backlasher: His pioneering research on "male sexual
aggression in courtship" goes back to the 1950s and is still cited in feminist literature on date rape. And
he is careful not to legitimize once-popular notions that "crying rape" is a product of some defect in the
female psyche or of a secret rape wish. Some false complainants, of course, are mentally disturbed. But
for most women in Kanin's study, the hoax served a practical purpose, an "alibi" for an illicit sexual
encounter that may be discovered through pregnancy or in some other way; revenge for rejection or
betrayal.
Some argue that no woman would expose herself to the ordeal of prosecuting a rape charge for such
frivolous reasons. But as Kanin points out, men and women do commit extreme acts with highly
unpleasant consequences (including murder) over "petty and commonplace transgressions."
Feminists often decry our culture's alleged eagerness to believe the "myths of the lying woman." But it
seems that it's the "victims don't lie" myth that is entrenched today. There is virtually no research on false
allegations; Kanin's study (which he says a female colleague tried to discourage him from pursuing)
received no press coverage.
The "believe the woman" principle has also gained ground in the legal system. Once, many states' laws
required the testimony of the accuser to be corroborated by other evidence (though only a minority of
jurisdictions ever strictly enforced this rule, and by 1980 it was nearly extinct). Feminists had a strong
claim of discrimination when they noted that there was no such requirement for robbery or assault. Still,
as feminist legal scholar Susan Estrich acknowledged in her influential writings on rape law in the 1980s,
without corroboration a conviction is far less likely for any crime. But Estrich argued that, since
"corroboration may be uniquely absent" in acquaintance rape cases, giving the same weight to
corroboration for rape as for robbery or felony assault was unfair to rape victims.
Of course, it then follows that to be "fair," we should convict defendants in rape cases on less evidence -and give the accuser's word more weight -- than in other crimes. Which makes those old sexist warnings
about how hard it is for an innocent man to defend himself against a charge of rape ring uncomfortably
true.
"Thank goodness," writes New York prosecutor Linda Fairstein in her book "Sexual Violence," "[the
victim's] testimony -- when it is credible -- is all that is needed to convict a rapist, as it is any other
criminal."
But what is "credible"? In 1996, Los Angeles police officer Harris Scott Mintz was accused of rape by two
women who were said to be "very credible": a woman in the neighborhood he patrolled, then his own wife.
At a pretrial hearing, the judge pronounced that he had no doubt about Mintz's guilt. Then, Mrs. Mintz
admitted that she made up the charge because she was angry at her husband for getting in trouble with
the law; subsequently, Mintz's attorneys uncovered evidence that the first accuser had told an exroommate she had concocted the rape charge in order to sue the county, and that she had tried a similar
hoax before. By the time the case collapsed, Mintz had spent five months in jail.
There are objective ways of gauging credibility: whether the story is consistent, whether verifiable details
check out. But too often, it has to do with subjective impressions. Feminists say that a rapist may go free
because the woman is not a "good victim": too calm, too angry, too flashy. But juries may also convict
because they like the victim or dislike the defendant. Of course, character and demeanor matter in almost
any trial. But they may assume a disproportionate importance when believing one party or the other
becomes the central issue.
Ironically, this creates a strong incentive for the defense to attack the woman's credibility -- that is, to use
the "nuts and sluts" tactics that feminists have decried. The problem is that the accuser's character and
her past can sometimes have a direct bearing on the guilt or innocence of the accused.
Take the 1991 case of Maryland realtor Gary Hart (not the politician), who was accused and acquitted of
raping a woman he had been dating. Evidence produced at the trial, which became a cause célèbre in the
local media, showed that the woman had a history of emotional instability and fantastic claims of sexual
assault made to psychiatrists and police. Surely these were facts the jury deserved to know. Yet many
victims' advocates reacted as if this were a gratuitous character assault and deplored the "abuse" of the
woman. Of course, if Hart was innocent, he was abused far worse; the negative publicity forced him to
sell his business.
Many courts, in fact, have barred such "abusive" inquiries under an expanded interpretation of rape shield
statutes -- applied not just to stop defense lawyers from painting the victim as a slut who deserved it, but
to suppress relevant evidence related to the woman's sexual history. The misuse of shield laws was
recently spotlighted by the notorious "cybersex" case in New York, in which Columbia doctoral student
Oliver Jovanovic was convicted and given a lengthy prison term for the sexual abuse of a Barnard student
he had met on the Internet. Jovanovic's claim that the encounter involved consensual bondage was
crippled by the exclusion of portions of the correspondence in which the young woman discussed
sadomasochism and her S&M relationship with another man. The law may have ended up shielding
perjury: On the stand, the woman testified that she never gave Jovanovic any indication of her interest in
S&M.
No one knows how often men are convicted of rape on the basis of false allegations. We only know about
the lucky ones who are later cleared -- like James Liggett in Washington state, who was convicted in
1991 of raping a woman he had met through a dating service and spent a year in prison before her story
fell apart (not only because she reported an eerily similar rape by another man from the same dating
service but because a private detective hired by Liggett found out that she had a history of unstable
behavior, including dubious claims of rape).
What happens more often is that, due to activist pressure not to dismiss rape charges, men who are most
likely innocent are subjected to a lengthy and costly ordeal. Traditional attitudes at their worst may result
in a Teflon system to which few rape complaints stick; but prosecutorial zeal on behalf of women may
result in a Velcro system that clings to the most dubious charges. When former New York police officer
Desmond Robinson was accused of sexually assaulting a policewoman during a night of bar-hopping, the
case dragged on for five months after the alleged victim was caught in a major lie: She first denied and
then had to admit that they had consensual sex in the bathroom of one of the bars, though she still
insisted that he forced her to perform oral sex later that night. (When she changed her story yet again and
reverted to insisting that there had been no consensual sex at all, the sexual assault charges were finally
dropped.)
The judicial system is not monolithic; stories of excessive zeal in pursuing alleged culprits can always be
countered with stories of callous indifference to real victims. Still, there is no doubt that in many cases,
the "women don't lie" dogma has led to serious infringements on the rights of accused men.
The trouble with the feminist position is that it seems to leave no room for the presumption of innocence
when a woman accuses a man of violating her. After the notorious sexual assault trial of sportscaster
Marv Albert, defending the judge's decision to admit compromising information about Albert's past but not
about the woman's, attorney Gloria Allred decried "the notion that there's some sort of moral equivalency
between the defendant and the victim" -- as if the defendant did not have the same moral standing as his
accuser until he has been proven guilty.
To recognize that some women wrongly accuse men of rape is no more anti-female than it is anti-male to
recognize that some men rape women. Is it so unreasonable to think that a uniquely damaging and
stigmatizing charge will be used by some people as a weapon, just as others will use their muscle as a
weapon? Do we really believe that when women have power -- and surely there is power in an accusation
of rape -- they are less likely to abuse it than men? As Columbia University law professor George Fletcher
has written, "It is important to defend the interests of women as victims, but not to go so far as to accord
women complaining of rape a presumption of honesty and objectivity."
Feminists have often been accused of betraying women out of allegiance to Clinton. The charge of
hypocrisy is hard to refute, since many of these same feminists have made solidarity with women a basic
principle. But feminism shouldn't be about supporting Clinton, or blindly supporting women. It should be
about fairness, including fairness to men who find themselves under the cloud of a charge that can never
be proved or disproved.
SALON | March 10, 1999
Cathy Young is the author of "Ceasefire! Why Women and Men Must Join Forces to Achieve True
Equality."
http://archive.salon.com/news/1999/03/cov_10news.html
"Evil" Scoff if you must, but you can't avoid it.
By Christopher Hitchens, Posted Tuesday,
Dec. 31, 2002, at 10:12 AM PT
There is probably no easier way to beckon a smirk to the lips of a liberal intellectual than to mention
President Bush's invocation of the notion of "evil." Such simple-mindedness! What better proof of a
"cowboy" presidency than this crass resort to the language of good guys and bad guys, white hats and
black hats? Doesn't everybody know that there are shades and nuances and subtleties to be considered,
in which moral absolutism is of no help?
Apparently everybody does know that, since at election times the same liberal intellectual will, after much
agonizing, usually cast his vote for whichever shabby nominee the Democratic Party throws up. And he
will do so, in his own words, because this is "the lesser evil." So, it seems that we cannot quite do without
the word, even though it's worth noticing that some people only employ it in an ironic or relativist sense,
as a quality that must be negotiated with, accommodated, or assimilated.
Though the word is often heard on the lips of preachers and moralists, it does also figure in the reflections
of modern moral philosophers. Faced with the evidence of genocidal politics in 20th-century Europe,
Hannah Arendt, for example, posed the existence of something she termed "radical evil" and suggested
that intellectuals were failing to allow for its existence as a self-determining force. Her phrase "the banality
of evil" also enjoys wide currency, serving to help us understand the ways in which "ordinary men" can be
mobilized or conscripted to do exceptionally ghastly things. If she had said "radical sinning" or "the
banality of sin" she might have seemed sermonizing or naive, but then President Bush did not refer to an
"axis of sin," did he?
It may not be of much help, in propaganda terms, to describe an enemy as "evil." Time spent in
understanding and studying a foe is always time well spent, and absolutist categories may easily blunt
this rigorous undertaking. But how far can certain analyses be taken without running up against a
recurrence of Arendt's dilemma?
Everybody knows that morality is indissoluble from the idea of conscience and that something innate in us
will condemn murder and theft without having to have the lesson pedantically inculcated. Finding a full
wallet on the back seat of a cab and deciding to hang onto it, most people would have to subject
themselves to at least some rationalization and justification, even if they were sure that nobody had
detected them. I myself can't decide if this inherent conscience is conferred upon us by evolutionary
biology—in other words, whether it selects well for socialization and survival and thus comes to us as
something possessing evident utility. That thought might be merely as comforting a reflection as a belief
in altruism. However, I do know for sure that a certain number of people manage to be born, or perhaps
raised, without this constraint. When confronted with the unblinking, conscienceless person we now say
that he is a "psychopath," incapable of conceiving an interest other than his own and perhaps genuinely
indifferent to the well-being of others.
This diagnosis is certainly an advance on the idea of demonic possession or original sin. But not all
psychopaths are the same. Some, rather than being simply indifferent to the well-being of others, have an
urgent need to make others feel agony and humiliation. Still others will press this need to the point where
it endangers their own self-interest—just as a pathological liar is one who utters apparently motiveless
falsehoods even when they can do him no possible good. Thus, we have to postulate the existence of
human behavior that is simultaneously sadistic and self-destructive. We would not have much difficulty in
describing the consequences of such behavior as evil. "It was an evil day when …" "The evil outcome of
this conduct was ..." Why, then, is there any problem about ascribing these qualities to the perpetrator?
For example, many countries maintain secret police forces and inflict torture on those who disagree. And
some countries inflict torture or murder at random, since the pedagogic effect on the population is even
greater if there is no known way of avoiding the terror. Caprice, also, lends an element of relish to what
might otherwise be the boring and routine task of repression. However, most governments will have the
grace (or the face) to deny that they do this. And relatively few states will take photographs or videos of
the gang-rape and torture of a young woman in a cellar and then deposit this evidence on the family's
doorstep. This eagerness to go the extra mile, as is manifested in Saddam Hussein's regime, probably
requires an extra degree of condemnation. And if we are willing to say, as we are, that the devil is in the
details, then it may not be an exaggeration to detect a tincture of evil in the excess. We could have a stab
at making a clinical definition and define evil as the surplus value of the psychopathic—an irrational
delight in flouting every customary norm of civilization.
Like everything else, including moral relativism, this would be subjective. Probably no journalist in the
current discourse has had more fun denouncing Bush as a reactionary simpleton than Robert Fisk of the
London Independent. His dispatches have an almost Delphic stature among those who decry American
"double standards." Yet I still have my copy of the article he wrote from Kuwait City soon after the
expulsion of Saddam's forces. He described as best he could the contents of certain cellars and
improvised lock-ups and the randomness of the carnage and destruction and waste (remember that
Saddam blew up the Kuwaiti oilfields when he had already surrendered control of them), but there was an
X-factor in the scene that he could smell or taste rather than summarize. "Something evil," he wrote, "has
happened here." I think I agree with him that we do indeed need a word for it, and that this is the best
negative superlative that we possess.
http://slate.msn.com/id/2076195
Death Row by the Numbers. The Supreme Court invalidates capital
punishment for juveniles.
By Dahlia Lithwick, Posted Tuesday, March 1, 2005, at 1:04 PM PT
The Supreme Court handed down its opinion in Roper v. Simmons this
morning; a decision invalidating the executions of juveniles who were
16 and 17 years old at the time of their crimes. Fighting over the
"evolving standards of decency" underlying the Eighth Amendment's
ban on "cruel and unusual punishment," the 5-to-4 opinions reflect an
all-out war between the proponents of a living (or at least mediumrare) Constitution and those who want to see it dead (or perhaps welldone, with a nice pinot). At one level, what's happening between the
lines of Justice Kennedy's majority opinion and Justice Scalia's
scorcher of a dissent, is a debate about how to count whether a
Too young to die?
national consensus or trend exists. But the more profound fight is over
whether and how judges have a right to exercise their independent judgment at all.
Everyone in this case is essentially agreed that the Eighth Amendment standard for what constitutes cruel
and unusual punishment is, after a case called Trop v. Dulles, not fixed in time but must reflect evolving
standards of what is decent or cruel or excessive. But Justice Kennedy's opinion today is dramatic in that
he goes much further than necessary, to leapfrog over Stanford v. Kentucky, the 1989 case—authored by
Scalia—finding that executing those who were 16 or 17 at the time of their crimes was constitutional.
Kennedy relies not simply on the counting of noses—specifically, how many states ban juvenile
executions and has there been a marked trend toward such bans across the national landscape. He goes
much further, citing to social science data, common sense, and international trends and treaties, and
ends up not simply distinguishing Roper from Stanford, but pitching that whole case like yesterday's
meatloaf.
The problem begins with Stanford itself and Scalia's need to concede that the Eighth Amendment's
definition of cruel and unusual must evolve past the standards of the Framers. That concession itself
meant that some entity must pass judgment on what current standards are. Scalia was quick to hedge,
emphasizing that "Eighth Amendment judgments should not be, or appear to be, merely the subjective
views of individual Justices; judgment should be informed by objective factors to the maximum possible
extent." But he leaves no doubt that courts must engage in this objective enterprise: The courts must
evaluate that data and discern what the trends may be. Scalia was careful to warn the courts that to
substitute the justices' own preferences for such empiricism would be to "replace judges of the law with a
committee of philosopher-kings." But beyond engaging in some nose-counting that made sense to him
and his colleagues in the majority, Scalia did little to dispel the notion that once you're in the nosecounting business, someone needs to hold the abacus.
That's more or less what Justice Kennedy does in Roper. He holds up the abacus and, with a little
gratuitous ringing of bells and blowing of whistles, he counts up to a trend. Citing to Scalia's accounting in
Stanford—where he found that, of the 37 states that permitted the death penalty at all, 22 allowed it for
16-year-olds and 25 allowed it for 17-year-olds—Kennedy simply observes that 15 years later five of
those states that allowed for juvenile executions then now prohibit it—four through the act of legislatures,
one through judicial decree—and that no state has gone in the other direction. Kennedy takes great pains
to show that these five states suffice as evidence of a national trend, and in doing so he launches Scalia
over the moon.
Then Kennedy goes further, citing to the social science data, offered largely in amicus briefs, which
suggested something that anyone with an 18-year-old baby sitter already knows: Teens are weird.
Kennedy then shows that the penological aims of retribution or deterrence are not served by killing those
under 18, and he body slams Scalia with the claim that he's not just overruling Stanford, but rejecting its
basic premise that it's not the place of the courts to bring their independent judgment to bear on
proportionality analysis in death-penalty cases. As if all that weren't enough to send Scalia out on a
shooting spree, Kennedy tacks on a final section in which he extols the persuasive (but not legally
controlling) power of international opinion on this matter. Waxing rhapsodic over the beauties of India,
Canada, and England, as well as on the Pact of San Jose, Kennedy confirms not only his contempt for
Scalia's oft-stated opinion that international law is utterly irrelevant to this court, but also his growing
status as the high court's Mr. International Guy—world traveler, diner with diplomats, and suave
European wannabe.
Is it any wonder that Scalia read his dissent from the bench this morning? Kennedy's decision was the
judicial equivalent of plucking out his chest hairs, one by one. Scalia opens his 24-page dissent (joined by
Rehnquist and Thomas but not by O'Connor) with the claim that Kennedy's opinion makes a "mockery" of
Alexander Hamilton's assurance that the judiciary has neither "FORCE nor WILL but merely judgment."
Then he assails the majority for "proclaiming itself sole arbiter of our nation's moral standards—and in the
course of discharging that awesome responsibility purports to take guidance from the views of foreign
courts and legislatures."
Scalia goes to town on Kennedy's math, arguing that five new states do not a consensus make: "Words
have no meaning if the views of less than 50% of death penalty states can constitute a national
consensus." But whereas Scalia is looking for empirical evidence of "overwhelming opposition over a long
period of time," he is never completely clear on how that's measured. He makes the same counterintuitive
point he made in Atkins—the case overruling the death penalty for the mentally retarded: He says states
outlawing capital punishment altogether shouldn't be counted as opposing capital punishment for minors.
He even trots out this only semi-offensive analogy: "Consulting states that bar the death penalty
concerning the necessity of making an exception for offenders under 18 is rather like including old-order
Amishmen in a consumer-preference poll on the electric car."
Scalia goes to great lengths to try to distinguish the court as diviners of a national consensus from the
alleged Kennedy view of the court as "prescribers" of a national consensus. He tells us he doesn't like the
way Kennedy counts, without acknowledging that someone, somewhere has to do this counting. What
he's really saying—and there is some validity to this complaint—is that what Kennedy calls "counting"
hides some fairly sketchy math behind gauzy social science and international opinion.
In a piece of vintage Scalia-ism he suggests that "our Eighth Amendment decisions constitute something
more than a show of hands on the current Justices' current personal views about penology." And he rails
some more at the majority and O'Connor for believing that there could ever be a consensus against killing
teens. Scalia's probably right that Kennedy's ability to count as high as five should not authorize the
judiciary to irrevocably set national law. But he can't quite bring himself to admit that he's just mad that the
court has again refused to use his math.
http://www.slate.com/id/2114192/
Rough Justice
Scalia exposes a flip-flop on the competence of minors.
By William Saletan
Posted Tuesday, March 1, 2005, at 10:34 PM PT
(For Dahlia Lithwick's take on the case, click here.)
Dissenting from Tuesday's U.S. Supreme Court ruling on the execution of juveniles, Justice Antonin
Scalia ridicules his colleagues for switching sides on the basis of "evolving standards." He calls the
majority opinion a "mockery" for supposing that the Constitution's meaning "has changed over the past 15
years." It's an unfortunate complaint, because the justice most flagrantly guilty of changing his position on
the moral responsibility of juveniles in the last 15 years is Antonin Scalia.
In the current case, Roper v. Simmons, Scalia goes after his favorite target, Justice Sandra Day
O'Connor. Never mind that she's on his side. "She is nonetheless prepared (like the majority) to override
the judgment of America's legislatures if it contradicts her own assessment of moral proportionality," he
writes in a footnote. "The votes in today's case demonstrate that the offending of selected lawyers' moral
sentiments is not a predictable basis for law."
Next, Scalia targets the author of Tuesday's majority opinion, Justice Anthony Kennedy. Scalia accuses
the majority of "picking and choosing" studies to support its "unsubstantiated generalization" that juveniles
are too immature to be held fully accountable for murder. "At most, these studies conclude that, on
average, or in most cases, persons under 18 are unable to take moral responsibility for their actions,"
Scalia writes. "Not one of the cited studies opines that all individuals under 18 are unable to appreciate
the nature of their crimes." Therefore, he concludes, they don't support Kennedy's "categorical prohibition
of the death penalty for murderers under 18."
Abortion figures heavily in Scalia's critique. He tweaks liberals who think minors are mature enough to
make abortion decisions but not mature enough to deserve execution.
As petitioner points out, the American Psychological Association (APA), which claims in
this case that scientific evidence shows persons under 18 lack the ability to take moral
responsibility for their decisions, has previously taken precisely the opposite position
before this very Court. In its brief in Hodgson v. Minnesota, 497 U. S. 417 (1990), the
APA found a "rich body of research" showing that juveniles are mature enough to decide
whether to obtain an abortion without parental involvement. ... The APA brief, citing
psychology treatises and studies too numerous to list here, asserted: "[B]y middle
adolescence (age 14-15) young people develop abilities similar to adults in reasoning
about moral dilemmas, understanding social rules and laws, [and] reasoning about
interpersonal relationships and interpersonal problems."
Scalia then skewers his colleagues for the same flip-flop:
In other contexts where individualized consideration is provided, we have recognized that
at least some minors will be mature enough to make difficult decisions that involve moral
considerations. For instance, we have struck down abortion statutes that do not allow
minors deemed mature by courts to bypass parental notification provisions. ... It is hard to
see why this context should be any different.
It's a clever point. But let's go back to the 15-year-old abortion case Scalia cited. In Hodgson, the court
upheld a Minnesota law that required notification of both parents before performing an abortion on a girl
less than 18 years old. However, the court also required Minnesota to offer girls the option of explaining
to a judge why they should be allowed to make the decision on their own. O'Connor insisted on the
judicial bypass as a means of "tailoring" parental involvement laws "to avoid unduly burdening the minor's
limited right to obtain an abortion." She cited a 1976 case in which the court struck down a parental
involvement law that didn't allow the option of "judicial determination that the minor is mature enough to
give an informed consent without parental concurrence."
O'Connor's position, in other words, was that age was too rigid a criterion. And what's her position in the
death-penalty context? The same. She opposes a "categorical prohibition" of death sentences for minors,
since the evidence merely shows "differences in the aggregate between juveniles and adults, which
frequently do not hold true when comparing individuals. Although it may be that many 17-year-old
murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite
mature. Chronological age is not an unfailing measure of psychological development."
Kennedy takes the other side. "All juvenile offenders under 18" should be exempt from execution due to
"lack of maturity and an underdeveloped sense of responsibility," he writes. While conceding that "some
under 18 have already attained a level of maturity some adults will never reach," he insists that "a line
must be drawn. ... The age of 18 is the point where society draws the line for many purposes between
childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest."
His position, in short, is that age is an adequate criterion. And what was his position in the abortion
context? The same. In Hodgson, he rejected O'Connor's insistence on a judicial bypass option.
"Legislatures historically have acted on the basis of the qualitative differences in maturity between
children and adults," he wrote. "Age is a rough but fair approximation of maturity and judgment."
Scalia derided his colleagues in Hodgson just as he derides them now. "One Justice holds that twoparent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but
constitutional with bypass," he wrote, citing O'Connor. "Four Justices would hold that two-parent
notification is constitutional with or without bypass," he added, citing Kennedy. These and other disputes
among the justices, he concluded, were "the random and unpredictable results of our consequently
unchanneled individual views."
But there's nothing random or unpredictable in Kennedy's or O'Connor's views on the competence of
minors in the two cases. They've held firm. The only justices who have "changed over the past 15 years"
are the one who switched from O'Connor's side to Kennedy's—Justice John Paul Stevens—and the two
who switched from Kennedy's side to O'Connor's: Chief Justice William Rehnquist and, you guessed it,
Scalia. At least Rehnquist and Stevens have the sense to keep quiet about it. Not Scalia. He's too busy
poking fun at the APA's flip-flop to notice that by taking the opposite side in both cases, he's flop-flipped.
When Scalia writes that "we have struck down abortion statutes that do not allow" judicial bypass, and
that in so doing "we have recognized that at least some minors will be mature enough to make difficult
decisions that involve moral considerations," what "we" is he thinking of? It can't include him. He had a
chance in Hodgson to affirm that some minors were mature enough to make moral decisions. He voted
no. And as the evolved Scalia observes 15 years later, it's hard to see why this context should be any
different.
http://www.slate.com/id/2114219/
Terrorism and the Philosophers, Can the ends ever justify the means?
By Jim Holt, Posted Monday, April 22, 2002, at 11:25 AM PT
Are acts of terror always evil? The answer to this question, oddly enough, depends on a rather illunderstood moral principle, invented by Catholic casuists in the Middle Ages, called the doctrine of
double effect.
Before getting to that, a few preliminaries. What constitutes an act of terror? The broadest definition is the
deliberate killing of noncombatants. That, for example, is how Caleb Carr characterizes terrorism in his
recent book The Lessons of Terror. For this he was taken to task in the New York Times Book Review by
Michael Ignatieff, who insisted that if the slaughter is carried out by "a state army under regular command,
as part of a formally declared campaign to defeat another state," then it ought not to be called terrorism.
But then in the current issue of The Nation, Richard Falk complains about the Bush administration's
"narrowing of terrorism to apply only to violence by nonstate movements and organizations, thereby
exempting state violence against civilians from the prohibition on terrorism."
The decision to reserve "terrorism" for nonstate acts of terror, or to extend it to state acts, is a semantic
one. Morally, it does not matter whether the murderers of civilians are wearing uniforms or not. What
might be morally relevant, though, is the cause behind the act of terror. If the cause is a bad one—
revenge, say, or a war of aggression—then the act of terror is obviously bad: evil in pursuit of evil. But it is
logically possible for the cause to be a good one. Ignatieff cites General Sherman's murderous march
through Georgia, which was intended "to bring the Civil War to a speedy conclusion." Since Sherman's
intention was good, Ignatieff argues, he was not a terrorist. But this ends the debate too hastily, making
terrorism evil by definition. The interesting question remains: Can the use of terror in a good cause,
whether by a state or nonstate agents, ever be morally justified?
If the killing of noncombatants were absolutely forbidden, then almost any military action (excepting sea
battles and desert wars) would be morally out of the question. When naval dockyards, munitions
factories, and supply lines are bombed, civilian carnage is inevitable. That is where the doctrine of double
effect comes in. Though it is always wrong to kill innocents deliberately, this doctrine says, it is sometimes
permissible to attack a military target with the certain foreknowledge that some noncombatants will die as
a side effect. It may even be permissible to bomb a hospital where Hitler is lying ill.
The doctrine of double effect, which can be traced back to Thomas Aquinas' Summa Theologiae, applies
to any sort of act that has two kinds of effects, good and evil. By its logic, such an act is morally allowable
only when the following conditions are fulfilled: 1) The agent is aiming only at the good effect; the evil
effect is not one of his ends, nor is it a means to his ends; and 2) the consequences of the act are good
on balance; that is, the goodness of the good effect outweighs the evil of the evil effect. (The philosopher
Michael Walzer has argued that a third condition should be added: that the actor seek to minimize the evil
effect, accepting costs to himself. This is a condition that, for example, the U.S. bombing campaign over
Kosovo failed to meet, since pilots flew high to protect themselves and dropped bombs inaccurately,
which resulted in greater civilian death.)
Acts of terror involve the deliberate killing of noncombatants as a means to an end. Thus they are
forbidden by the law of double effect, specifically by condition 1). But is this doctrine really valid? Why not
leave out intentions and simply judge the rightness or wrongness of an act by its consequences, the way
utilitarians do? Take the bombings of Hiroshima and Nagasaki. Between 120,000 and 250,000 civilians
were deliberately executed en masse to cow the rulers of Japan into submission. Truman claimed in his
memoirs that the alternative, an invasion, would have cost half a million American lives. If he was right (a
big "if," as revisionist historians will tell you), the net savings from these acts of terror amounted to around
a quarter of a million lives. Why, one might ask, let medieval scruples about intentions get in the way of
that?
There are plenty of contemporary moral philosophers who are unhappy with the doctrine of double effect.
Some (Peter Singer, for example) reject it because they think the distinction between directly intended
effects and inevitable side effects is a contrived one. If you ask the terror bomber why he is killing
civilians, he will say, "To win a just war." He might even say that he does not need the civilians actually to
be dead, but only to be thought to be dead until the war is over to demoralize the other side. If his victims
could be miraculously brought back to life after the end of the struggle, he would not object. In this sense,
he does not really intend their deaths. (This point has been made by the philosopher Jonathan Bennett.)
To take a different case: If I can kill Saddam Hussein only by shooting him through an innocent human
shield, do I intend harm to the innocent shield or not?
A second problem with double effect (raised by the English philosopher Jonathan Glover) is identifying
the class of evil acts that can never be justified by their good effects. It is not hard to imagine a case in
which lying to an innocent person might save a life. Would the doctrine of double effect forbid this?
Presumably not, but then why does it forbid the deliberate killing of an innocent person? Even supposing
that killing is a million times worse than lying, if you can lie to save a life, why can't you kill to save a
million lives?
Finally, there is irrelevance of intentions to the harms caused by an act. The incidental victims of a
strategic bomber are just as dead as the intended victims of a terror bomber; their surviving family
members are no less grief-stricken. A civilian threatened by a strategic bomber has just as strong a moral
claim to be rescued as a civilian threatened by a terror bomber.
Defenders of the doctrine of double effect appeal to Kant's categorical imperative: A person is always to
be treated as an end, never merely as a means. And treating people as a means—to send a message, to
create wider panic, to demoralize the enemy nation they are a part of—is precisely what the perpetrator of
an act of terror does. "He sees them as material to be strategically shaped or framed by his agency," the
moral philosopher Warren S. Quinn writes. "He must treat them as if they were then and there for his
purposes."
The debate over the doctrine of double effect, though philosophically interesting, is mostly moot. It is
possible to think up hypothetical cases where an evil act is a means to a disproportionately good
outcome—"If you boil this baby it will save 10 lives." But in the real world, acts of terror are rarely
efficacious in a good cause (somewhat less rarely in a bad one). That is not surprising when you think
about it. Deliberately killing noncombatants does not weaken an enemy militarily, precisely because they
are noncombatants—children, the aged, and so forth. Far from having a demoralizing effect, the bombing
of civilians both by the Germans and by the British during World War II seemed to stiffen the sinews of
each side. In The Lessons of Terror, Caleb Carr produces ample historical evidence that terror is
especially impotent when it comes to fighting terror—witness the sorry experience of the French in
Algeria. All of which suggests an empirical counterpart to the doctrine of double effect: To act knavishly in
a good cause is to act foolishly.
http://slate.msn.com/id/2064544
Where Did the Fifth Amendment Come From?
By Dahlia Lithwick, Posted Tuesday, Feb. 12, 2002, at 12:36 PM PT
Former Enron Chairman Kenneth Lay asserted his Fifth Amendment rights before the Senate Commerce
Committee today, "respectfully declining to answer" any of the committee's questions. What is the history
behind, and rationale for, the Fifth Amendment right not to testify against oneself?
The Fifth Amendment to the U.S. Constitution provides that "no person ... shall be compelled in any
criminal case to be a witness against himself." The right was created in reaction to the excesses of the
Courts of Star Chamber and High Commission—British courts of equity that operated from 1487-1641.
These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning
that prosecutors did not bear the burden of proving a case, but that sufficient "proof" came from
browbeating confessions out of the accused.
These courts required the accused to answer any question put to him, without advance notice of his
accusers, the charges against him, or the evidence amassed. With the abolition of the Courts of Star
Chamber and High Commission, the common law courts of England incorporated this principle of nemo
tenetur—that no man should be bound to accuse himself. By the 18th century, English law provided that
neither confessions coerced during the trial nor pretrial confessions obtained through torture could be
used. This was based on the belief that coerced confessions were inherently unreliable.
The right to be free from self-incrimination was established in nine state constitutions and was a tenet of
the common law throughout most of the colonies before it appeared in the U.S. Constitution. Since then,
the U.S. Supreme Court has expanded the Fifth Amendment to apply not only to criminal proceedings
and pretrial proceedings in criminal matters, including police-station interrogations, but also to "any other
proceeding, civil or criminal, formal or informal, where his answers might incriminate him in future criminal
proceedings." The law also prohibits prosecutors from making reference to a defendant's refusal to take
the stand as probative of guilt. So long as the government is compelling potentially incriminating
speech—either before a jury or a Senate Committee—the right can be invoked.
Bonus Explainer: In the statement he made today before Congress, Lay quoted from an unnamed 2001
Supreme Court opinion stating that one of the Fifth Amendment's "basic functions … is to protect innocent
men …" What was the case?
Answer: Ohio v. Reiner, a unanimous opinion reversing the Ohio Supreme Court's ruling that a witness
who denies all culpability doesn't have a legitimate Fifth Amendment privilege against self-incrimination.
http://slate.msn.com/id/2061972
Does Your Spit Have Fifth Amendment Rights?
By Chris Suellentrop, Posted Friday, Feb. 15, 2002, at 9:25 AM PT
Virginia's legislature passed a law this week that allows the state to take a DNA sample from anyone
arrested for a violent felony. If the Fifth Amendment protects us from self-incrimination, how can people
be forced into providing evidence such as DNA samples or bodily fluids against their will?
The Self-Incrimination Clause of the Fifth Amendment reads that no "person ... shall be compelled in any
criminal case to be a witness against himself." But the courts have long interpreted this narrowly to mean
that the Fifth Amendment protects suspects only from being forced to produce "testimonial or
communicative" evidence. The Fifth Amendment does not protect suspects from being compelled to
produce "real or physical evidence." As Oliver Wendell Holmes once wrote, "the prohibition of compelling
a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral
compulsion to extort communications from him, not an exclusion of his body as evidence when it may be
material."
This distinction between "testimonial or communicative" evidence and "non-testimonial" (real or physical)
evidence means that the Fifth Amendment does not protect you from being forced to submit to such
things as fingerprinting, photographing, measurements, blood samples, or DNA evidence. Nor does it
protect you against standing in a lineup or demonstrating your walk.
The Fifth Amendment doesn't even mean that you can't be forced to speak. The Supreme Court has held
that the state can force suspects to speak if it's for the purpose of identifying the physical properties of
their voice and not for providing testimony.
http://slate.msn.com/id/2062109
If You Take the Fifth, Can Prosecutors Get You To Talk?
Emily Yoffe, Posted Thursday, April 19, 2001, at 3:42 PM PT
News reports say that President Clinton's brother, Roger, is considering invoking his Fifth Amendment
privilege against self-incrimination when he is called to testify before the New York grand jury
investigating Bill Clinton's pardons. If you take the Fifth, can prosecutors get you to talk?
Asserting one's Fifth Amendment right against being "compelled in any criminal case to be a witness
against himself" usually means refusing to answer any questions. If a witness tries to answer questions
selectively, those answers can be interpreted as a waiver of Fifth Amendment privilege. And once it's
waived, a witness cannot reassert the privilege. It is possible for a prosecutor and a defense lawyer to
arrange before testimony that a witness or defendant will answer certain non-incriminatory questions
without that being interpreted as a Fifth Amendment waiver.
But the best way for a prosecutor to get testimony from a reluctant witness is to grant immunity from
prosecution. That's why we'll hear what Denise Rich, ex-wife of financier Marc Rich, has to say about the
machinations that led to her former husband's pardon. According to Time, Denise Rich has struck a deal
with prosecutors that none of her testimony can be used against her. Once a prosecutor grants immunity,
the threat of being a witness against oneself evaporates, and the person is compelled to testify. Refuse,
and you can be held in contempt of court. In another Clinton investigation, Whitewater, the former
president's former business partner, Susan McDougal, was granted immunity but refused to testify before
a grand jury and spent almost two years in jail for contempt.
During its Clinton pardon investigation, Congress did not offer immunity agreements to the witnesses who
invoked the Fifth Amendment because such immunity would have interfered with the parallel federal
criminal investigation now moving ahead in New York. Although invoking the Fifth can't be introduced
later as evidence against you in trial, it doesn't tend to go over well in the court of popular opinion. That's
why Bill Clinton, while musing on the ontological meaning of "is" under oath, never took the Fifth.
http://slate.msn.com/id/1007531
What Makes a Drug Crime a Federal Offense?
Emily Yoffe
Posted Wednesday, April 18, 2001, at 4:48 PM PT
Yesterday's Wall Street Journal reported that the Bush administration is seeking an 8.3 percent increase
in spending for the federal Bureau of Prisons to $4.66 billion, making it the largest item in the budget of
the Department of Justice. Most of the money will be going to lock up federal drug offenders at a time
when state prison incarceration rates have slowed significantly. So how does someone arrested for drugs
end up in a federal penitentiary?
While most drug arrests are made by local police, anyone arrested for any drug offense can end up in the
federal system because any drug offense is considered both a state and federal crime. One and a half
million people were arrested in the United States for drug crimes in 1999; about 20 percent of those
arrests were for sale or manufacture, and the rest were for possession. If you were one of those 1.5
million, there are a few sure paths to ending up in the federal system. One is to get arrested by a federal
officer. That could entail anything from being caught smoking marijuana at a national park to being picked
up in a drug bust by the Drug Enforcement Administration. Another good way to end up in the federal
system is to have someone inform on you: Someone facing a federal drug charge can get leniency by
identifying other players. Someone arrested by local law enforcement could end up in the federal system
because of decisions made in private between state and federal prosecutors--and there is no appeal if a
case is handed over to the federal authorities.
While some states, such as New York and Michigan, have draconian drug sentencing laws, the federal
system is notorious for the severity of its mandatory minimum sentences for possession of even small
amounts of drugs. In addition, federal prisons have essentially abolished parole, which has led to huge
growth in the federal prison population. Thirty years ago, only 16 percent of the federal prison population
was in for drug charges. Today, it's nearly 60 percent. And since the mid-1980s, when the crack epidemic
hit, the federal government has dramatically increased its number of prisoners. In 1986, the year that the
federal mandatory minimum drug statutes were passed, the federal prison population was 40,000. Today
it is about 150,000. While far more people are in state facilities on drug charges--about 400,000 to
500,000--by comparison they make up between 20 to 25 percent of that prison population.
http://slate.msn.com/id/1007521
Can a Company Be Charged With a Crime?
By Brandt Goldstein, Posted Friday, April 12, 2002, at 12:47 PM PT
According to the New York Times, Arthur Andersen has agreed to admit it committed a crime by
shredding Enron-related documents. How can a company, as opposed to an individual, be charged with a
crime in the first place? You can't put a whole company in jail, can you?
The criminal charge facing Andersen is obstruction of justice under 18 U.S.C., Section 1512(b). In order
to violate that section, the defendant must "corruptly persuade" someone to destroy documents. The
defendant also has to intend that the documents won't be available for legal proceedings. Former Arthur
Andersen partner David Duncan pleaded guilty to obstruction as an individual on April 10.
But since a company—or a limited liability partnership such as Andersen—is simply a legal construct, it
cannot commit a physical act such as obstruction of justice. So, how does Congress get past this problem
when it wants to punish a company as a whole? By attributing the acts and intentions of the company's
employees to the company itself, an approach the Supreme Court first endorsed in the 1909 case of New
York Central and Hudson River Railroad Co. v. United States. That case held that since corporations
were already liable in civil cases for their employees' bad conduct (within the scope of their job), it was
perfectly appropriate to extend that rule to the criminal law.
Why? Deterrence. If only an individual employee could be punished for bad acts, the firm could pressure
other employees to carry on the same criminal conduct. (If the crime is outside the scope of the
employee's job and isn't meant to help the company, the company can't be liable. Robbing a 7-Eleven
after you've delivered soft drinks there won't get the soda distributor you work for in trouble.)
But why seek criminal sanctions against a company rather than civil ones? One reason is the power of a
grand jury. In a civil proceeding, Andersen can bring its attorneys to any employee deposition, and the
proceeding's scope is limited to the misdeeds alleged in the complaint. But in a criminal grand jury
investigation, prosecutors can use subpoenas to force employees to testify—with no company lawyer at
their side. The proceedings may go on for months, even years, and there's almost no limit to what the
grand jury can investigate.
In addition to heavy fines meted out in a criminal conviction, the court can put a company on probation for
several years. No corporation wants a judge as an overseer.
Also, under Securities and Exchange Commission rules, if Andersen were found guilty, it would be barred
from practicing before the SEC, which means audited financial statements produced by Andersen couldn't
be filed with the commission. The Andersen deal is structured to avoid an SEC bar, which is one reason
the firm may have agreed to it. Otherwise, a bunch of Andersen employees would have little to do but
clean out their offices, shred their documents, and go home.
http://slate.msn.com/id/2064322
When Can a Defendant Be Tried in Absentia?
By Brendan I. Koerner, Posted Thursday, June 19, 2003, at 9:55 AM PT
Cosmetics heir Andrew Luster, who skipped out on a rape trial in January, was captured yesterday in
Puerto Vallarta, Mexico. He had been convicted in absentia and sentenced to 124 years in prison. Under
what circumstances can a person be tried in absentia?
The typical scenario involves a defendant who flees midtrial, fully aware that he or she is supposed to
show up in court each and every day. Rule 43 of the Federal Rules of Criminal Procedure clearly states
that a defendant waives the right to be present if he's "voluntarily absent after the trial has commenced."
(Most state rules on trials in absentia are similarly worded.) A bail jumper like Luster, who forfeited his $1
million bond by walking out of a California courthouse during a recess, certainly fits into that category.
Trials in absentia are exceedingly rare—most judges and attorneys will never be involved with one. The
procedure doesn't jibe with the notion of due process, especially the constitutional right of the accused to
confront witnesses. So, judges are careful to make sure that a defendant's absence is truly voluntary,
rather than the result of foul play, ill health, or lack of notice, lest they create grounds for an appeal.
If a defendant takes off during the pretrial phase, however, he may be able to elude an in absentia
conviction. In the 1993 case Crosby v. United States, the Supreme Court ruled that federal law "prohibits
the trial in absentia of a defendant who is not present at the beginning of trial." This despite the fact that
Crosby, accused of mail fraud in Minnesota, appeared before a federal magistrate to enter a "not guilty"
plea before escaping to Florida. As for a fugitive who has never been in custody, such as Osama Bin
Laden, odds are slim to none that any U.S. court would permit his trial in absentia, regardless of the
strength of the evidence.
Nor can globe-trotting criminals be tried in absentia by the International Criminal Court. Article 63 of the
Rome Statute, which governs the ICC's operation, simply states, "The accused shall be present during
the trial." Of course, it's doubtful that anyone high-profile enough to merit the ICC's attention would be
afforded the chance to skip out on bail.
http://slate.msn.com/id/2084605
Vile, Vile Pedophile, Is child molesting a sickness or a crime?
By Dahlia Lithwick, Posted Wednesday, Jan. 7, 2004, at 4:17 PM PT
Again, and for all the wrong reasons, we can't take our eyes off Michael
Jackson. Whether or not the allegations are substantiated, the question is in
the air: Is pedophilia a disease to be treated, or a crime to be punished? Are
people who seduce minors sick or evil? Our current legal and medical systems
blur both views. We call for the most draconian punishments (life
imprisonment, castration, permanent exile) precisely because we view these
acts as morally heinous, yet also driven by uncontrollable biological urges.
Michael Jackson:
accused
than cancer patients.
If sex with children is truly the product of freely made moral choices, then we
should deal with it through the criminal justice system. But if it is a genetically
over-determined impulse, an uncontrollable urge nestled in our DNA, then
punishing pedophiles must be morally wrong. As science—and culture—
increasingly medicalizes bad behavior, finding a neurological component to
everything from alcoholism to youth violence, we run the parallel risks of either
absolving everyone for everything, or punishing "criminals" who are no guiltier
What science has revealed about the moral/medical roots of pedophiles is, of course, ambiguous. What is
clear is that the binary choice laid out above is an oversimplification. The medical community, which
started to view pedophilia as a disease rather than a crime in the 19th century, has amassed evidence that
at least some violent and antisocial behaviors have genetic links and signposts. But researchers have
been unable to isolate a biological cause for pedophilia, or even to agree on a personality profile. Not to
mention the terrific confusion within the medical community in defining what this "disease" really involves.
Until a few years ago, for example, the DSM-IV—the Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders—defined pedophilia as a disease only if the sufferer's "fantasies, sexual
urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other
important areas of functioning." In other words, a non-impaired, remorseless pedophile was apparently
perfectly healthy.
Advocates of the "disease" school say pedophilia is often the product of uncontrollable impulses that
seem to respond to treatment (including castration, both surgical and chemical) particularly in conjunction
with monitoring and behavioral therapy. This raises at least a possibility not associated with car thieves
and insider traders: That small tweaks to one's brain chemistry may neutralize the impulse to commit
more crimes. And if that is the case, they contend, shouldn't we be treating rather than punishing? Can
we really call ourselves a just society if we are jailing folks for their neurochemical profile? In a thoughtful
essay in Reason, Thomas Szasz urges that pedophilia is ultimately still a moral failure regardless of its
biological roots: "Bibliophilia means the excessive love of books. It does not mean stealing books from
libraries. Pedophilia means the excessive (sexual) love of children. It does not mean having sex with
them." The crime, he argues, is not the psychological impulse, but the willingness to give in to it. But this
conclusion assumes an answer that science is still uncertain about: whether for some pedophiles, the
impulse to molest has become a pathology. If that is the case, pedophiles can't have the criminal intent
necessary to want to commit a crime, and that mens rea is the cornerstone of our criminal law.
Assume, for a moment, that we are sophisticated enough to embrace this ambiguity, to accept the
likelihood that the reality is complicated, and that both chemistry and morality are at work in the creation
of a sexual predator. Studies by Stanford University neuroscientist Robert Sapolsky suggest that mental
illness really falls along a continuum—that criminals are not "sick" or "evil" but some intricate combination
of both. What, then, is the moral and proper approach to their acts?
In 1987, Robert Wright explored this choice/illness dichotomy as it related to alcoholism in the New
Republic. Wright's ultimate conclusion was that it is a mistake to label a behavior—even a behavior with
some biological and genetic determinants—a "disease" because it ultimately means "giv[ing] up on the
concept of volition altogether." According to Wright, since alcoholism is the product of a complicated
moral soup of environmental and biological factors, since biology may play a role, but not the only, or
even predominant role, in these behaviors, we are better off holding people responsible for their actions
than not. Otherwise, he argues, "things fall apart."
This "things fall apart" approach has its attractions. It suggests that in a world of increasing causal
complexity, morality must remain all the more unequivocal. The question, then, is whether this pragmatic
solution is also the ethical one as the stakes rise. The problem is that pedophilia, unlike alcoholism, has
one real and tangible victim for every incident. If alcoholics damaged another person's life with every
drink, the parallel might hold. But if statistics from the National Institute of Mental Health are right, and the
average molester of boys will have 150 victims before apprehension, then the social costs of a single
incident are astronomical.
If the repercussions of the act argue for holding the perpetrators morally responsible, regardless of their
level of agency, then the seriousness of the punishment pulls in the other direction. Holding alcoholics
morally responsible for their actions has predominantly insurance and employment consequences.
Holding a child molester responsible for his actions means a lifetime of incarceration or of monitoring,
unemployment, and shaming. Offender registries are certainly an alternative to other forms of vigilantism,
but the practical effect is a whole subclass of offenders with nowhere to live or work. If science someday
proves us wrong, and pedophiles are wholly victims of their own biology, we will have victimized them
twice and called it justice.
There are, it's generally agreed, four basic rationales for punishment: revenge, rehabilitation, deterrence,
and incapacitation. If we accept the mixed causation theory—that pedophilia is part disease and part
crime, then almost none of these rationales are served. Lifetime recidivism rates show that "rehabilitation"
alone has not been very effective for sex offenders, and we know that deterrence is unlikely when most
offenders are able to "get away with" multiple acts before apprehension. Revenge makes sense only
where rational choices led to the commission of the crime, which is in doubt when one's neurochemistry
may be running the show. Which leaves only incapacitation as the reason for punishing pedophiles.
Now, don't knock incapacitation. A lifetime of involuntary confinement was a good idea for carriers of the
Black Plague, who were guilty of no moral failures at all. But this raises the practical, financial component
of imposing complete moral responsibility on pedophiles. Our jails are teeming with sex offenders; and
knowing what we do about recidivism rates for pedophiles (recent studies show that they are lower than
previously believed in the short-term, but still hovering at 50 percent over a 25-year "career") we must
choose between lifetime involuntary confinement, or the cost of ongoing monitoring. Due to prison
overcrowding, child molesters are released each day into communities that no longer care whether
pedophiles are sick or evil, so long as we throw away the key.
The appeal of the crime-punishment model is that it can tailor the punishment to the crime. A one-time
molester is as sick as a serial predator under the disease theory. But the attraction of the disease model
is that it assumes both that there is a cure, and that the perpetrators wish to be cured. There is a danger
to assuming the latter is true. It's been the basis for the states who adopted mandatory civil-commitment
laws, following the Supreme Court's holding in 1997's Kansas v. Hendricks that the most dangerous child
molesters can be held involuntarily, after their sentences are served, so long as they're receiving
treatment. The problem is that often the treatment they receive is not sufficient or effective. But since this
is "treatment" and not "punishment" neither the public nor the Constitution is offended, says the court. The
danger of the "treatment" model is the danger posed to a society that has sedated and medicated an
entire population into a law-abiding stupor. But the crime/punishment model is similarly hopeless. The
promise of an ever-growing number of pedophiles either languishing in jails we cannot afford, or using
jails for sleepovers between crimes is, quite possibly, a worse nightmare than the "treatment" option.
Perhaps the best solution to a problem with hybrid causation is a hybrid solution: Studies generally show
that treatment is better than no treatment, and it's hardly coddling criminals to institute a program of close
supervision, drug therapy, and counseling. If science is proved even 10 percent right and nature has
some hand in creating a pedophile, lifelong imprisonment solves only one immediate problem—
warehousing dangerous citizens. But it raises a more immediate problem—we may be punishing sick
people who could have been helped.
http://slate.msn.com/id/2093582
The Unkindest Cut, The science and ethics of castration.
By Atul Gawande, Updated Sunday, July 13, 1997, at 12:30 AM PT
With surprisingly little fanfare, four states recently passed laws calling for castration--either chemical or
surgical--of sex offenders. Last month, prompted by two prisoners who actually wanted the treatment,
Texas Gov. George Bush signed a law letting judges offer castration as an option for perpetrators of sex
crimes. Florida, California, and Montana have all enacted more stringent laws to order involuntary
chemical or surgical castration of these criminals.
The technology for castration has evolved considerably, and there is evidence that, in some
circumstances, it can dramatically reduce the likelihood a sex offender will strike again. Nonetheless,
there are strong reasons that court-ordered castration is a bad idea.
Americans remain frustrated with the inability of the justice system to control rape and child molestation.
Dozens of states have enacted so-called Megan's Laws requiring that the public be notified when
released sex offenders move in nearby, but people complain that it doesn't help much to know that your
neighbor is a pedophile if you can't do anything about it. More states are turning to doctors to solve the
problem for them.
Compulsory castration has been used as a punishment for crimes in all cultures dating back thousands of
years. In Europe in the Middle Ages, the "eye for an eye" philosophy of jus talionis included castration as
punishment for adultery or rape. In the 20th century, castration has been practiced in the Netherlands,
Germany, Estonia, Iceland, Switzerland, and Scandinavia for rape, pedophilia, and homosexuality. After
World War II, its use in Europe was dramatically scaled back, probably because of the increased
awareness of humanitarian concerns prompted by the Holocaust.
More recently, research has produced powerful drugs, such as cyproproterone and
medroxyprogesterone, which reversibly block testosterone production. The drugs' primary use in men is
to control prostate cancer, but when injected daily or weekly they reduce testosterone to castration levels.
Side effects include serious allergic reactions and the formation of blood clots that can kill patients. The
drugs also appear to alter thinking enough to increase suicide rates. The Czech Republic and Germany
have reintroduced castration in this modern, seemingly humane form, although only among sex offenders
who volunteer for treatment.
Surgical castration is less mutilating than it once was. Orchiectomy, as it is called, is a day-surgery
procedure done under local anesthesia. Each testicle is removed through a small scrotal incision similar
to the kind made during a vasectomy.
Three of the four new state laws call for sentencing rapists to be castrated, but with some variations.
Florida requires judges to impose either injections or orchiectomy for repeat rapists. California does the
same, but only for repeat child molesters. Montana allows, but does not require, judges to impose
chemical castration on offenders who commit rape or incest after even one offense, if it is particularly
heinous.
Legislators argue that castration is justified and appropriate, and that by controlling sex offenders'
irresistible urges to rape or molest again, the operation allows them to be released without endangering
the public. Studies of the European experience suggest they could be right. Of more than 700 Danish sex
offenders castrated after multiple convictions, relapse rates dropped from between 17 percent and 50
percent to just 2 percent. A Norwegian study showed the same for selected male and female sex
offenders (the women had their ovaries removed). In smaller studies of cyproproterone in Scandinavia
and Italy, chemical castration was equally effective in some groups of volunteer prisoners, with the most
dramatic reductions among pedophiles.
These studies suggest the common argument--that rape is all about power, not sex, and therefore
castration won't work--is wrong. Interestingly, a German study found that up to half of the castrated men
still could have erections and sex, but their desire was weakened or even extinguished. Over 80 percent
no longer masturbated; 70 percent gave up sex. As Fred Berlin, a Johns Hopkins University psychiatrist
and expert on treating sex offenders, points out, castration works "mainly in those who are sexually
aroused by their crime ... sadists and pedophiles." Castration takes the impulse away from those with an
aberrant sexual orientation, often to their relief.
So what objection could there be to castration of sex offenders? Well, none, if it is carefully applied to the
narrow group of repeat sadistic or pedophiliac rapists who accept the treatment. But the court-mandated
castration proposed in Florida, California, and Montana raises serious problems.
1 The laws are wrong to apply castration indiscriminately. The studies show that castration is
effective in criminals with multiple offenses, especially if they are motivated by sex. But proponents are
wrongly using the data to justify mandatory application across the board. In Florida and Montana, all
rapists are targeted, even though sadists and pedophiles are only a small percentage of the total. Most
rapists appear to be motivated by hatred or anger, not sex. Montana lets judges order castration after just
one offense. Dr. Berlin argues that the laws impose "a medical intervention in the absence of evidence
that forced treatment is likely ... to be effective" and make "no effort to medically assess whether
[castration] is appropriate for an individual."
2 Forced castration is difficult to administer. First, the state must find doctors willing to do the job.
(Heaven's Gate members had to go to Mexico for the operation because no California doctor would
perform it on them.) California's law suggests letting state workers give the injections without medical
supervision, but the serious side effects, and the need to ensure that appropriate doses are given, make
this approach foolhardy. It also raises the question of what to do with people who can't take the drug
because of the side effects. Would they have to go back to jail? Bringing in released convicts for
injections is even more difficult. The longest-lasting drug, medroxyprogesterone, still must be given
weekly. Making sure that rapists and pedophiles turn up week after week for an unwanted, potentially
lifelong treatment may prove impossible.
3 Forced castration is immoral. In 1985, the Supreme Court recognized this when it ruled that
involuntary surgical castration constituted cruel and unusual punishment. The court may be persuaded to
let chemical castration stand because it is theoretically reversible. If this line is crossed, politicians would
have little to stop them from seeking forced treatments to control other behaviors, such as adultery (for
which castration has historically been a punishment), prostitution, or the consumption of pornography. As
medicine's arsenal expands (we already have drugs to limit libido, hunger, and depression), it is
conceivable that laws could mandate even wider uses of medicines to control the population.
Many people see rapists as a special case, though, having no objections to extreme measures to stop
them from raping again. The crime is so repugnant, they say, that it is hard to treat rapists as people
deserving of any concern. Prisoners, after all, give up their rights for having committed such crimes. But
as bioethicist Arthur Caplan points out, while "prisoners are excluded from moral life," losing the right to
vote, "Americans have not reduced them to non-human status." Unlike Iran, Turkey, or Nazi Germany, the
United States accepts prisoners' rights to free speech, legal representation, and health care. We still
reject using prisoners for organ transplants or slave labor. Requiring castration for rape means we have
decided it is acceptable to treat prisoners as less than human.
While the laws elsewhere fail to counter these fundamental objections, the narrower castration law in
Texas seems more appropriate. It does not mandate castration, instead reserving it for repeat offenders
who seek the treatment. Larry Don McQuay could be the first to whom it is applied. He admits to
molesting children at least 240 times. Having completed his sentence for his one conviction, he is set for
release. Fearing his urges, he wants orchiectomy. It should be done.
http://slate.msn.com/id/2660
Does the Law Treat the Insane Differently Than the Retarded?
Dahlia Lithwick, Posted Wednesday, June 27, 2001, at 8:41 AM PT
This week, the attorney for Andrea Yates, the Houston woman accused of killing her five children,
announced he would probably seek an insanity defense for his client. Meanwhile, Texas Gov. Rick Perry
vetoed legislation banning the execution of mentally retarded offenders. Does the law treat the insane
differently than the retarded? And aren't all retarded people automatically protected by an insanity
defense?
There is little legal connection between insanity and mental retardation. "Insanity" is a legal term, not a
medical one. "Mental retardation" is a medical construct--generally applied to anyone who scores below
about 70 on an IQ test. A defendant can be mentally retarded without being legally insane, and vice
versa. Still, there is some overlap. Between 20 to 35 percent of all non-institutionalized mentally retarded
people have also been diagnosed with some form of mental illness.
Evidence of mental retardation tends to be a factor at two limited phases of a criminal trial: during a
preliminary competency hearing, and later--if the defendant proceeds to conviction--to mitigate the
severity of the punishment.
Insanity, on the other hand, is a legal defense. Evidence of a defendant's insanity is put on during trial to
support a specific legal theory for the defense: that the offender didn't understand what he was doing at
the time of the crime. Courts have been clear that the insanity defense and competence to stand trial are
wholly independent determinations because they involve a defendant's mental state at different times and
because the ultimate questions differ.
The Competency Hearing
Court competency hearings determine whether or not a retarded defendant can: 1) comprehend the
nature of the charges again him; and 2) assist in his own defense. If the defendant cannot do so, he will
usually be committed to a forensic hospital or, under some state laws, to prison sometimes for life,
depending on his crime. These hearings are conducted by judges who rely heavily on psychiatric reports.
An insane defendant may also go through a competency hearing prior to trial. But unlike a severely
retarded offender, he may well be deemed competent to stand trial. Since retardation is a permanent
condition while "insanity" may be treatable, the insane offender can be often be "made" competent, with
medication or therapies, whereas the retarded defendant may not. In the case of Andrea Yates, her
attorney suggested today that she is to be stabilized, or rendered competent, in order to plead insanity at
trial.
The Insanity Plea
An insane defendant found competent to stand trial still has the option of pleading "not guilty by reason of
insanity," a term which dates back to English common law. M'Naghten's Rule--still the test for legal
insanity in about a third of the states--derives from an 1843 case involving a man who shot Prime Minister
Robert Peel's secretary in the mistaken belief that the man was Peel. M'Naghten's rule holds that a
person is insane if "at the time of committing the act, he was laboring under such a defect of reason from
disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that
he did not know what he was doing was wrong." About half the states use a more lenient standard than
this "right versus wrong" test to determine insanity, specifically whether "the defendant could have known
of the criminality (wrongfulness) of his conduct or conform his conduct to the requirements of law." In
Texas, where Andrea Yates' lawyer is contemplating using the insanity defense, the more stringent
M'Naghten rule is used.
Most mentally retarded people are not found to be legally insane. Death penalty scholars believe that
when President Bush recently announced in Europe that he opposes executing retarded offenders, he
was confusing Texas' insanity test with the competency test.
The Fakers
While the public believes that some famous insanity pleaders, including the Unabomber, Lorena Bobbitt,
and most notoriously, John Hinckley, "fake" insanity to avoid punishment, a 1991 study by the NIH
showed that just under 1 percent of defendants pleaded not guilty by reason of insanity, and that only one
in four of those pleas resulted in an acquittal. Even if a defendant can prevail on an insanity defense,
she'll most likely be confined to a hospital for the severely mentally ill for a longer or equivalent period of
time to her likely prison sentence.
Since the death penalty was reinstated in 1976, at least 35 mentally retarded defendants have been
executed in the United States. In 1989, the Supreme Court ruled that it was OK to execute the mentally
retarded because there was no "national consensus" against the practice. They have agreed to revisit
that issue next term, in part because in 1989, only two states barred executing the mentally retarded.
Today, 15 states prohibit it, with Gov. Jeb Bush in Florida having just signed such a bill last week.
Even if found competent to stand trial, a defendant has the right to bring in evidence of his mental
retardation at the sentencing phase of the hearing. Juries can determine at that time whether an
offender's mental retardation should be a mitigating factor in penalizing him.
http://slate.msn.com/id/1007908
Nuts to Whom? The insanity defense is crazy.
By Dirk Olin, Posted Tuesday, Nov. 18, 2003, at 11:32 AM PT
The jury in the trial of accused D.C.-area sniper John A. Muhammad has
returned multiple guilty verdicts. The trial of his alleged accomplice, teenager
Lee Malvo, is now under way. The prosecution of the first case is essentially
the defense in the second: that Malvo was merely following the demented
orders of his father figure, Muhammad. To get that defense before the jury,
Malvo is pleading not guilty by reason of insanity.
The very notion of a teenager crouched in the trunk of a car assassinating
people willy-nilly does seem crazed on its face. But Malvo's courtroom tack has
provoked the predictable outrage engendered by every attempt at the insanity
plea (with Dennis Miller's adolescent blather leading the pack.)
Invocations of the insanity defense often pique the public because of a
Does Malvo's defense
widespread misperception that the plea offers an opportunity to get away with
make sense?
murder. Such fears are almost completely groundless. Yet they've already led
to the intellectually dishonest construct of "guilty but insane" pleas passed by legislatures in a number of
states. These hybrid pleas promote a beguiling oversimplification of how society should apportion blame.
Bright lines are often unavoidable in the law, but the precision of modern psychiatry demands that we
stop asking juries to make medical determinations of insanity once and for all.
Malvo's plea is closer to that of Patty Hearst, the heiress kidnapped in the 1970s who took up bank
robbery with her captors, than that of Jeffrey Dahmer, the cannibalistic mass murderer, or that of Andrea
Yates, the postpartum depressive who drowned her five kids. Like Hearst, Malvo claims he was
brainwashed, in his case by the older Muhammad. Juries typically put more stock in the concept of
brainwashing than do members of the psychiatric field. Still, the jurors might prove tough to persuade in
this case, if only because polls have shown that verdicts are more conditioned by jurors' visceral fear of
the defendant than by their understanding of insanity's legal contours. And there's no question that
Malvo's said some chilling stuff when interrogated about his part in the killing spree. So, Malvo now faces
a two-part challenge: First, prove he was programmed into this serial monstrosity; second, evoke the
jury's pity, or at least neutralize its terror of him.
The woolly-headed denunciations of the insanity defense are actually far more common than their
invocation by criminal defendants. A reputable study funded by the National Institute of Mental Health in
the early 1990s found this defense used in less than 1 percent of a representative sampling, with only
one-quarter of those pleas argued successfully. (Hearst, Dahmer, Yates, and even the Unabomber all
failed with their insanity pleas, for example.) And even when such pleas do work, they almost never
amount to a "get out of jail free" card. Studies show that an insanity pleader's average stay in a mental
institution exceeds the average sentence served by those criminally convicted.
Prior to the 19th century, guilt was more frequently judged according to causation than intent. If your cart
ran over my foot, it didn't matter whether you meant to do it or not. You were adjudged blameworthy. As
an appreciation of criminal motivation took hold, however, a door was opened to a greater variety of
defenses. In 1843, the modern insanity defense was born after a Scottish psycho named Daniel
M'Naughton tried to shoot British Prime Minister Sir Robert Peel, killing his secretary instead. A jury was
persuaded by the testimony of various psychiatrists who said M'Naughton was delusional. The next year,
a panel of judges created the standard that's been largely used in America ever since—that a defendant
is not guilty if he or she didn't know what they were doing or didn't know it was wrong. (Competence to
stand trial is weighed separately, because the defendant's mental state may have changed one way or
the other since commission of the offense.)
Seems fair. But after John Hinckley was acquitted by reason of insanity in 1982—because he had shot
President Reagan in an effort to impress actress Jodie Foster (a motivation that Dennis Miller would no
doubt find squarely within the bounds of sanity), various lawmakers started twitching. Reactionaries
essentially equated insanity pleas with Twinkie defenses, and they wanted their constituents to know they
weren't going to stand for any mollycoddling of criminals. So, many states passed statutes that created
pleas of "guilty but mentally ill." Under such systems the deranged, if deemed guilty, are incarcerated in
prisons with "sane" inmates (though they may be accorded special pharmaceutical arrangements). Failing
to differentiate these populations is like treating all illnesses with a blanket quarantine. Whether any cures
are possible is still an open question, of course, but one we're much less likely to answer via unvariegated
warehousing.
It was society's previous failure to think through this issue that made the system susceptible to such
ineffectual changes. The "guilty but mentally ill" plea represents an ill-advised lurch toward a standard that
feels both righteous and firm. But out of an understandable desire to heighten accountability came a
logical absurdity: You're guilty—but you're not. You are sick and thus not wholly accountable, yet you are
treated exactly the same as the guilty. The mutual contradiction inherent in such a construct takes the
"oxy" out of oxymoronic.
Do the semantics of all this really matter for purposes of our criminal justice system? If the goal is to
protect us against violent perps, does it make a difference whether we call them nuts or no-good? It
might. A recent study by Human Rights Watch concluded that as many as one in five of the 2.1 million
Americans in jail and prison are seriously mentally ill. That's roughly five times the number of people in
mental hospitals. The far-ranging lack of appropriate therapy can hardly be reducing recidivism, and it
certainly carries no deterrence for mentally ill criminals. It also fails to meet the retributive goal of
reserving punishment for the guilty.
One modest solution? The system should separate medical diagnoses from legal judgments. We should
employ disinterested experts—appointed by the court, rather than hired by otherwise appropriately
adversarial players—to address such questions empirically, as opposed to strategically. Insanity has
historically been a legal, not medical, term. Junk it. If a defendant claims mental illness, better to let a
panel of psychiatric professionals parse the severity of any condition than leave it to the vicissitudes of a
jury. (Defendants need not waive right to trial: If they are determined to be sane, the fact-finding would go
forward; if not, they could reach a plea deal based on the medical panel's finding.)
Juries are impaneled to try facts. Judges are responsible for interpreting the law. A jury shouldn't
diagnose Lee Malvo's maladies (or lack thereof), any more than it should rule on evidentiary admissibility
or perform tonsillectomies. If we lock up violent offenders without understanding why they did what they
did, we vitiate the meaning of retribution, which society demands. We also mitigate the possibility of
rehabilitation, which basic humanism requires. We can, of course, choose to continue ignoring this
problem, locking up more and more insane defendants while treating them less and less.
But that way madness lies.
http://slate.msn.com/id/2091364
Little Man Tate, Florida's young murderer and the insanity of our
competency laws.
By Dahlia Lithwick, Posted Friday, Jan. 2, 2004, at 3:03 PM PT
Lionel Tate, the Florida teen who was sentenced to life in prison at 14 for
brutally murdering a 6-year-old playmate when he was 12, will likely be going
home this month. His mother, Kathleen Grossett-Tate, has agreed to a plea
deal that would give him credit for the three years he's already served in a
juvenile facility, impose a year of house arrest, 10 years' probation, and some
mandatory counseling and community service in exchange for his plea to
second-degree murder. The bargain is identical to an agreement the boy and
his mother rejected before his 2001 trial—after which he was sentenced to life
without parole. That sentence was reversed last month by a Florida appeals
court, which held that the trial judge had erred in refusing to test Tate's mental
competency to stand trial.
Tate—allegedly the youngest recipient of a life sentence in U.S. history—has
How "competent" can any become something of a poster boy for reforming a criminal justice system
child be?
increasingly warped by the myth of the juvenile "superpredator." He has met
with the pope and collected champions at the U.N. Human Rights Commission and Amnesty
International. His appeal was supposed to herald the beginning of the end of states prosecuting juveniles
as adults. The discussion around the Tate case has largely addressed the issue of prosecutorial
bloodthirstiness and the decision to try him as an adult in criminal court, a decision that forced some
tearful members of his jury to impose a mandatory life sentence. While all that may be true, it isn't the real
point of the Lionel Tate story. The Florida appeals court didn't rule on the evils of trying children as adults
or on the harshness of Tate's original sentence. The court highlighted a simpler and subtler problem:
There is something fundamentally wrong with our assumptions about a child's competency to stand trial.
The standard for legal competency to stand trial is well known: In a 1975 case, Drope v. Missouri, the
U.S. Supreme Court held that "a person whose mental condition is such that he lacks the capacity to
understand the nature and object of the proceedings against him, to consult with counsel, and to assist in
preparing his defense may not be subjected to a trial." It is, in short, unconstitutional to try someone who's
unable to appreciate what's happening at trial and to help his lawyer during the proceedings. Which ought
to mean, in short, that it's unconstitutional to try children who have no clue as to what is going on.
Lionel Tate, whose IQ was tested at 90 at the time of trial and whose "social maturity" was evaluated as
that of a 6-year-old, spent much of his time in the courtroom drawing pictures at counsel table. His
attorney noted that he didn't seem to be concerned with the proceedings at all. He followed (terrible)
advice from his mother and his attorney to reject the proffered plea deal. Nevertheless, Tate's lawyer
failed to request a competency exam until after the trial ended. The question for the court of appeals,
then, was whether the judge should have ordered that full mental competency exam regardless. The
court's answer was yes.
While the court went out of its way to point out that "competency hearings are not, per se, mandated
simply because a child is tried as an adult," it felt that in light of Tate's age, his unfamiliarity with the legal
system, and the complexity of the case against him, the judge should not have taken for granted that he
was competent. Moreover, said the court, it was wrong for the trial judge to assume that Tate, with the
mental age of an 8- or 9-year-old, could possibly understand the strategic and constitutional decisions
necessary to help his attorney defend against a first-degree murder charge. Indeed, his lawyer's defense
strategy—that WWF wrestlers made Tate do it—sounded as if it was cooked up by an 8-year-old in the
first place.
All of the court's sensitivity to the mental and emotional limitations of childhood thus begs the real
question: Can any child ever understand what is happening at trial, and could any teenager possibly
understand the nuances and strategies involved in a murder defense? In its opinion, the Florida court laid
out a broad checklist of the mental skills necessary to meaningfully stand trial. The lower court needed to
"assess Tate's appreciation of the charges, the range and nature of possible penalties, determine whether
he understood the adversary nature of the legal process, his capacity to assist his attorney in planning his
defense, his capacity to realistically challenge prosecution witnesses, his ability to manifest appropriate
courtroom behavior, his capacity to testify relevantly, and his motivation to help himself in the legal
process." It's not clear that any teenager could meet that standard of mental sophistication. It's not even
certain that I could.
What goes unspoken in the Florida court's opinion is a truth that's been known to social scientists for a
long time: The binary "competent/incompetent" test of one's ability to stand trial makes no sense as
applied to children. Of course a 14-year-old with the intelligence of a 9-year-old can understand the
charges against him, but only as well as a 14-year-old with the intelligence of a 9-year-old can understand
anything, including Shakespeare and the nuances of neuropsychiatry. Of course a 14-year-old can assist
in his own defense, but not as well as he'd be able to if he were 16, and a 16-year-old quite obviously
can't assist his lawyer as well as he could were he 21. The whole point of adolescence is that you
understand some things pretty well, but not with the sophistication of an adult, and that a year or two
makes a vast cognitive difference.
All this has been exhaustively and empirically documented by researchers such as Dr. Thomas Grisso,
Dr. Richard Schwartz, and Prof. Richard Bonnie. These scholars and their colleagues have consistently
found that children under the age of 14 are simply not cognitively competent to "stand trial," if competence
is defined in the legal sense laid out above, and that a significant number of children under 15 are as
impaired as severely retarded adults when it comes to legal decision-making. Still, in virtually every state
children are now waived into adult courts without any assessment of whether they are fit to be tried there.
There are two easy solutions: The first is to make a mental competency hearing a prerequisite for any
child under the age of 15 who's being tried as an adult in criminal court. What possible objection could
there be to determining whether a child is capable of understanding what is at stake or if he thinks he's on
Judge Judy? The second is a return to the juvenile court system, which was designed to address a truth
we seem to have forgotten: that children are fundamentally different from adults, and that even when they
commit the most heinous of adult crimes, they cannot be said to have had a meaningful trial if the most
they could do there was color.
http://slate.msn.com/id/2093411
What Is Entrapment?
Matt Alsdorf, Posted Tuesday, Sept. 21, 1999, at 3:10 PM PT
Patrick Naughton, a top Internet company executive, was arrested last week for allegedly crossing state
lines with the intent to have sex with a 13-year-old girl, whom he had met in an Internet chat room. The
13-year-old girl turned out to be an FBI agent. Why is this not entrapment?
In most states, a successful entrapment defense requires the defendant to prove three things:
1. The idea of committing the crime came from law enforcement officers, rather than the defendant.
2. The law enforcement officers induced the person to commit the crime. Courts have traditionally
maintained a high burden of proof for inducement. Simply affording the defendant the opportunity
to commit the crime does not constitute inducement. For inducement to be proved, officers must
have used coercive or persuasive tactics.
3. The defendant was not ready and willing to commit this type of crime before being induced to do
so. If an undercover cop bought cocaine from a person carrying a kilogram of the drug, the seller
could not plead entrapment, even if coercion were involved in the sale, since his intent to sell was
clear. Most courts also allow a defendant's predisposition to be demonstrated through prior
conduct or reputation.
The reported facts of the Naughton case do not appear consistent with these requirements. Naughton is
alleged to have carried on a five-month Internet relationship with the undercover officer during which he
repeatedly solicited sex and ignored warnings that her age might get him in trouble. Also, Naughton
purportedly frequented chat rooms used by adult men to contact teen-age girls and is alleged to have had
sexually explicit images of children on his laptop computer.
http://slate.msn.com/id/1003657
What Makes a Drug Crime a Federal Offense?
Emily Yoffe, Posted Wednesday, April 18, 2001, at 4:48 PM PT
Yesterday's Wall Street Journal reported that the Bush administration is seeking an 8.3 percent increase
in spending for the federal Bureau of Prisons to $4.66 billion, making it the largest item in the budget of
the Department of Justice. Most of the money will be going to lock up federal drug offenders at a time
when state prison incarceration rates have slowed significantly. So how does someone arrested for drugs
end up in a federal penitentiary?
While most drug arrests are made by local police, anyone arrested for any drug offense can end up in the
federal system because any drug offense is considered both a state and federal crime. One and a half
million people were arrested in the United States for drug crimes in 1999; about 20 percent of those
arrests were for sale or manufacture, and the rest were for possession. If you were one of those 1.5
million, there are a few sure paths to ending up in the federal system. One is to get arrested by a federal
officer. That could entail anything from being caught smoking marijuana at a national park to being picked
up in a drug bust by the Drug Enforcement Administration. Another good way to end up in the federal
system is to have someone inform on you: Someone facing a federal drug charge can get leniency by
identifying other players. Someone arrested by local law enforcement could end up in the federal system
because of decisions made in private between state and federal prosecutors--and there is no appeal if a
case is handed over to the federal authorities.
While some states, such as New York and Michigan, have draconian drug sentencing laws, the federal
system is notorious for the severity of its mandatory minimum sentences for possession of even small
amounts of drugs. In addition, federal prisons have essentially abolished parole, which has led to huge
growth in the federal prison population. Thirty years ago, only 16 percent of the federal prison population
was in for drug charges. Today, it's nearly 60 percent. And since the mid-1980s, when the crack epidemic
hit, the federal government has dramatically increased its number of prisoners. In 1986, the year that the
federal mandatory minimum drug statutes were passed, the federal prison population was 40,000. Today
it is about 150,000. While far more people are in state facilities on drug charges--about 400,000 to
500,000--by comparison they make up between 20 to 25 percent of that prison population.
http://slate.msn.com/id/1007521
Can You Plead Guilty and Maintain Your Innocence?
By Dahlia Lithwick, Posted Monday, Nov. 5, 2001, at 1:30 PM PT
Last week, former Symbionese Liberation Army member Sara Jane Olson pleaded guilty to having
planted bombs under police cars 25 years ago and then denied her guilt to reporters moments later,
telling them she entered the plea because she feared she couldn't get a fair trial in the wake of the Sept.
11 terrorist attacks. The next day, her judge scheduled a hearing to determine whether to set aside her
plea. Does a criminal or civil defendant have to believe sincerely in her plea for it to stick in a court of
law?
No. In a landmark 1970 case, North Carolina v. Alford, the defendant pleaded guilty to second-degree
murder to avoid a trial on a first-degree murder charge—which carried a possible capital sentence. When
entering his plea, the defendant claimed he was innocent of the crime but too afraid of the death penalty
to risk a trial. The judge accepted Alford's plea, and the U.S. Supreme Court later held that a guilty plea
made out of alleged fear or coercion is still valid. "[T]hat he would not have pleaded except for the
opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not
the product of a free and rational choice." A 1970 California Supreme Court decision also holds that as a
matter of state law, a defendant can plead guilty while still asserting innocence if there is enough
evidence against her to support a finding of guilt.
While nothing required Olson's judge to reopen proceedings, based on her public statements of
innocence, nothing prohibited him from reopening the case or rejecting her plea and forcing the case to
go to trial. Judges in criminal cases are uniquely responsible for determining whether a plea entered is
fair and uncoerced. Whether or not a judge is willing to accept a plea that may have been motivated by
fears turns more on that judge's theory of coercion than anything else. Since up to 90 percent of criminal
convictions result from plea bargaining, and at least 90 percent of the people in prison seem to insist that
they are innocent, it stands to reason that the criminal justice system will not necessarily invalidate a
guilty plea simply because the defendant makes out-of-court statements about his innocence.
Bonus Explainer: Daisy Manufacturing Co. recently settled a product liability suit for approximately $18
million after a BB was dislodged and shot from an allegedly defective magazine in one of their BB guns,
leaving a 16-year-old boy in a near-vegetative condition. Having paid out on the settlement, Daisy's
position remains that nothing is wrong with their product. Does that claim affect their settlement?
No. Some settlement agreements can contain "gag provisions" barring the parties from discussing the
settlement. For the most part, however, the rules of free speech and the efficiencies of the settlement
process mandate that no criminal defendant, or civil litigant, must say they were wrong publicly in order to
be found wrong in the eyes of the law. Judges tend to view civil settlements with even less suspicion than
plea bargains, considering them private agreements between parties and without the inherently coercive
dangers of a criminal prosecution.
http://slate.msn.com/id/2058208
Justices Repel Alien Invasion!
By Dahlia Lithwick, Posted Wednesday, April 25, 2001, at 12:00 AM PT
The weird double life of the Supreme Court is shown in stark relief at this time each year as the written
decisions dwarf the workaday business of oral argument. This sense—that what the court is writing each
day in April is far more important than what it's hearing—is reinforced again this morning as the
permanent press corps swarms the gallery at 10, listens intently as the decisions in the Seatbelt Mamma
(Atwater v. Lago Vista) and English-only (Alexander v. Sandoval) cases are read from the bench, then
evacuates at 10:15 in order to file stories before noon.
Possibly the teen-agers and tourists who line up all morning to witness a few minutes of argument in
today's pair of immigration cases feel as though they are witnessing law being made. But the frenzy
created by the court's written decisions confirms that law is actually made in closed conferences and
through late-night redrafts with law clerks. Oral argument is just Kabuki.
Which leads me to the following warning: If ever you are given tickets to a Kabuki performance about
statutory construction, congressional intent, and the meaning of the word "removable" in the Illegal
Immigration Reform and Immigrant Responsibility Act, pass, even if they promise lots of bloodshed and
miming and stuff.
The American Civil Liberties Union's Lucas Guttentag is here today representing two different groups of
criminal aliens facing imminent deportation under the IIRIRA (which is called, variously, 'IRARA or
however you say it' and 'however you pronounce that statute' by the justices). IIRIRA and the
Antiterrorism and Effective Death Penalty Act, were, respectively, 1997 and 1996 congressional attempts
to remedy perceived softness on crime and criminal aliens with wildly overcompensatory statutes that
disemboweled the attorney general, the judiciary, and any other nefarious agent of due process seeking
to review death penalty and deportation cases. IIRIRA expressly barred judicial review of a deportation
order and also gutted a provision allowing the attorney general to waive deportation under certain
circumstances. The aliens in the first case, Calcano Martinez et al. v. INS, each sought waivers of
deportation after a felony conviction, and they were all told by the Board of Immigration Appeals that the
waivers had been repealed under IIRIRA. The courts went on to tell them that they had no jurisdiction
under the act to review these decisions.
The alien in the second case, INS v. St. Cyr, adds a wrinkle to the jurisdictional argument. Enrico St. Cyr
claims that because his felony was committed prior to the enactment of IIRIRA, and because he entered
a guilty plea prior to its enactment, the statute should not be used to deport him or to deny him judicial
review. At the time he pleaded guilty, more than half of the deportees applying for waivers were permitted
to stay. St. Cyr claims he counted on that when he accepted the plea.
It might all sound tremendously arcane, but it does raise some smashing questions about Congress'
ability to hamstring those wacky liberal judges, and more profound legal questions about what one is to
do when Congress cheerfully enacts draconian, unfair legislation, then joyfully stands behind it as
necessary in the war on crime.
For two hours of argument, first on the jurisdictional issue and then on the retroactivity case, the court
puts Guttentag and Deputy Solicitor General Edwin Kneedler through their paces. Justice Kennedy gets
sloppy-semantic over whether there can even be a "final deportation order" under the statute if the
attorney general refuses to exercise his discretionary authority to waive it. When Kennedy suggests to
Guttentag that this might be a winning argument for his side, Scalia needs to interject that "the reason you
didn't make that argument is that it isn't a very good one."
Guttentag does concede that Congress could permissibly limit the scope of judicial review of a
deportation order. He simply urges that some form of review is necessary. Kneedler insists otherwise.
These criminal aliens had full access to the appeals process in their criminal trials. They have no right to
judicial review in the deportation process. Kennedy asks what happens if there's a very serious error or
violation in the process that's being collaterally reviewed while the alien is being deported. Kneedler
almost cackles as he lets loose the flying monkeys: "My assumption is that some court could stop it ...
some court would probably review it." You can almost hear him whisper, "Or not, who cares? Congress
sure didn't."
The court wonders collectively whether every grant of discretion is reviewable by a court. Scalia offers the
example of a presidential pardon as a nonreviewable discretionary act. He doesn't say it, but you almost
hear him whisper: Not yet.
Guttentag seems to make a little more headway with the facts in St. Cyr. Perhaps because Justice Breyer
goes out of his way to hypothesize the sympathetic double felon facing deportation. He's 45. He provides
for his entire family. He once stole a pair of tennis shoes in Massachusetts. Then he stole some fruit from
a train (fruit from a train?). He doesn't say it, but you can practically hear, "He stole the fruit to feed the
dying orphan he had taken into his Dumpster." Well, says Breyer, "wouldn't you want to give him a shot?"
He wouldn't have done that whole fruit-train thing all those years ago if someone had told him he'd be
deported subject to a 1996 act. "Why should we pick up people who are 60 years old, who have families,
who in youth committed indiscretions?!"
Breyer almost sobs. It oughtta be a movie on Lifetime Television for Women.
The court bats around the language of Landgraf v. USI Film Products—the case that set up the test for
retroactivity. The first prong of the test is whether Congress explicitly intended the statute to be
retroactive. The bizarre second prong holds that statutes shouldn't be applied retroactively if "new legal
consequences" attach to acts committed before enactment. (Suggesting that the only permissible
retroactive laws are identical to the laws they've replaced ... )
There's a good deal of bickering about whether felons have the right to expect to have their deportations
waived, or if, to quote Scalia, the guy stealing the shoes isn't really thinking about whether the attorney
general might let him stay in the country following his deportation hearing. Somehow, felons are always
rational calculating actors when Congress is contemplating stricter drug-sentencing legislation. But not
when Scalia has them shoplifting Nikes. Still, on rebuttal, Guttentag seemingly takes his cue from Breyer
and offers an emotional plea for a man who's supported his family, committed one little offense, and done
nothing wrong since then (sob) ...
Oh, and in a nod to the news, today's big decisions represent more of the court's trademark 5-4 battles to
stick it to the little guy. Except that Justices Souter and O'Connor switch sides in Atwater—the case of the
Texas mother who was stopped by the police for violating a seatbelt law, then arrested and cuffed in front
of her children and briefly jailed. Souter's opinion sympathetically touts "Atwater's claim to live free of
pointless indignity," before announcing that the Fourth Amendment does not protect against warrantless
arrests for misdemeanors punishable only by fines. Weirdly, the sob story may be enough to grab
O'Connor, whose ferocious dissent in Atwater is animated almost exclusively by the horrifying sob story
from the plaintiff.
Finally, and for the Fraysters in our midst, with all the endless speculation about who will be retiring from
the court this summer, does anyone have any thoughts as to who'd get voted off first were they to resolve
this in a civilized Survivor fashion?
http://slate.msn.com/id/104931
A Denaturalized Man
By Dahlia Lithwick, Posted Wednesday, Jan. 10, 2001, at 12:00 AM PT
"Difference" feminists have been arguing for years that the best way to promote gender equality is by
treating the genders differently. And the notion that you must treat people unequally to promote equality is
at the core of the affirmative-action debate. It's what animates today's case—Nguyen v. INS, which
involves the federal government's efforts to, as Deputy Solicitor General Edwin Kneedler puts it today,
"put fathers of children born out-of-wedlock abroad on the same footing as mothers of children born outof-wedlock abroad." Congress chose to level the playing field by treating such fathers and mothers
differently.
Whereas the illegitimate children born abroad to American women earn immediate U.S. citizenship, the
children born abroad to American fathers do not. Under Section 1409 of the federal Immigration and
Nationality Act, fathers who want to acknowledge their foreign-born out-of-wedlock offspring must take
several affirmative steps before the child turns 18: They must prove a blood relationship to the child, they
must agree in writing to support the child financially until age 18, and they must have their paternity
adjudicated in court.
The theory appears to be that there is no doubt that a child popping out of an American womb is the
creation of at least one American, while the citizenship of a child said to be fathered by an American man
but foaled by a foreigner is in doubt. So said fathers should be forced to affirmatively prove citizenship of
their kids. Or something. Frankly, as Justice Souter points out today, one good way to treat men and
women equally is to treat them, well, equally.
While there's no question that the Immigration and Nationality Act treats fathers and mothers differently, it
still may not violate the equal protection requirements of the Fifth Amendment, if—as usually happens in
immigration cases—the rule is reviewed by the courts with hyper-deference to Congress. So, as so often
happens in what might have been an interesting case before the Warren or Burger courts, the justices get
bogged down all morning over whether or not Congress exceeded its plenary powers in promulgating the
rule.
Mmmmm, talk plenary powers to me, baby.
The plaintiffs are Tuan Ahn Nguyen, and his dad, Joseph Boulais. Nguyen was born in Vietnam in 1969,
out-of-wedlock, to Boulais and a Vietnamese mother, who abandoned the boy at birth. Boulais raised
Nguyen in Houston, assuming he was a U.S. citizen until discovering otherwise at Nguyen's deportation
hearings in 1995. Now before you get too misty, Nguyen was being deported because he was a convicted
felon—guilty of sexual assault on a child. Still, when the INS sought to deport him as a foreign convicted
felon, Boulais was ticked. The only reason his son is not a citizen is that Boulais hadn't known about the
extra INS hurdles required of fathers, hurdles not required of mothers. Moreover, Boulais did all the things
fathers are meant to do under the statute—supported his son financially and acknowledged himself the
father. He just never did so in court.
Nguyen and his dad lost their case before the Board of Immigration Appeals and then lost again on the
Fifth Circuit. A different case last year on the Ninth Circuit went the other way—holding that the statute
was unconstitutional on equal protection grounds. A 1998 Supreme Court case, Miller v. Albright, almost
got to this issue, then ducked it when the plaintiff did not have legal standing to bring the case. There is
no standing problem in Nguyen, so the court has a chance to finish today what it started in Miller. In a
dissent in Miller, Justices O'Connor and Kennedy telegraphed that they might invalidate the statute on
equal protection grounds if the right case came along. Nguyen is hoping this is that case.
So, here we are, presumably to talk about gender discrimination in the immigration statute, or at least to
discuss the standard of review for immigration statutes. Instead, we spend a good bit of the morning
discussing Ruth Bader Ginsburg's grandson.
Now, for the questions people have been asking me all week: "Dahlia, how are the justices behaving in
the wake of the Bush v. Gore debacle? Aloof? Depressed? Smug? Combative?" The answer is, for the
most part, no. Today is a pretty regular day for Chief Justice Rehnquist, who embarks on his midmorning
stroll behind the bench, and Breyer who—typically—grips his head as if in the throes of some massive
inflammatory gum disease. O'Connor is typically snappish today, not merely with counsel, but with a few
of her brethren. And Thomas rests his eyes. Business as Usual. In fact, the only justice who appears to
be acting strangely today is Ginsburg—who's cracking jokes, chuckling aloud, and being weirdly
gregarious. Initially, I speculate that she is perhaps still comforting herself over the election by turning to
drink.
God knows, I did.
But no, on closer inspection, she's not drunk. She may just be suffering from the displaced nihilism of the
badly disillusioned. So, almost right out of the chute, Ginsburg is questioning Martha Davis, who's on
academic leave from her usual job as legal director for NOW's Legal Defense Fund and arguing for
Nguyen. Davis is trying to argue that citizenship issues are outside the plenary power of the federal
government, and the justices are baiting her over whether foreign-born children of American parents are
born citizens or naturalized. Says Ginsburg, "My grandson was born in Paris. I never considered him
naturalized."
Then Ginsburg starts to worry. "Can such persons be denaturalized?" she asks. Davis replies that they
can be subjected to "additional conditions." Later, Ginsburg summarizes the case with: "There's a debate
about this. There's a debate about whether my grandson is a natural-born citizen. I think he is though."
She chuckles some more.
Later, during the deputy solicitor general's presentation, Ginsburg describes the fathers of these
illegitimate children as "Johnny Appleseeding around," which is a wonderfully fecund image but, again,
notably un-Ginsburg-like. When, moments later, Justice Stevens suggests that DNA tests make it very
easy to identify the putative father, Ginsburg chuckles, "Once you find out who he is." Then, as counsel
tries to move on to a new point, she interrupts him again, "Before you get to that Mr. Kneedler, I keep
worrying about my grandson. … Do you think he could be denaturalized, like a naturalized citizen?"
Kneedler, like much of the audience, starts looking like maybe Ginsburg should take a few minutes to call
and check on her grandson before continuing with oral argument. It's all just extremely weird. Justice
Scalia is clearly inclined to defer to Congress, and O'Connor and Kennedy are clearly still ambivalent.
So, if you were hoping to read all about the nuance of difference vs. equality feminism and what it means
to set higher standards for paternity, well sorry, Charlie. Your dinner table conversation will probably be
more engaging. (Unless your preschooler is taking a "plenary powers" finger-painting class.)
And say a prayer for Justice Ginsburg's grandson: the denaturalized man.
http://slate.msn.com/id/96511
No "No means no" is still a pretty good rule.
By Dahlia Lithwick, Posted Friday, Oct. 10, 2003, at 3:12 PM PT
In a preliminary hearing this week in Eagle, Colo., the details of Kobe Bryant's alleged rape of a 19-yearold woman were recounted on the stand. Bryant's accuser, speaking through the police detective who
met with her after the alleged assault, indicated that she said "no" at least twice over the course of the
encounter. Today, Gregg Easterbrook suggests that the problem is that the word "no" is just not strong
enough to signal that a rape has taken place. Why? Because, according to Easterbrook, "no" has come to
mean "yes." As he observes (doubtless with the empirical evidence to back it up), "Maybe half the sex in
world history has followed an initial 'no.' "
I'm guessing it's closer to 80 percent, but that still makes it rape, doesn't it?
Why is this? "Because," according to Easterbrook, "men know this—because in the real world 'no' does
not always mean no." Sometimes, he goes on, "no" just means "not now, but maybe after more wine." His
suggestion? Since the word "no" has lost all social and legal meaning, we should raise the bar a little and
require women to say, "This is rape." That, according to Easterbrook, would stop all but the most callous
rapists in their tracks.
It's tough to figure out when a rape has occurred, says Easterbrook, so let's put a heavier burden on
women to clarify things.
Here's what Easterbrook's suggestion ignores: Once upon a time the word "no" had social meaning, too.
It didn't lose its social meaning because the word "no" is ambiguous. (If someone asks to borrow my
Honda and I say "no," it's clear I haven't consented.) The word "no" has lost meaning because in this
situation we choose to ignore its directive to desist. So, why would we possibly take "This is rape" more
seriously? Easterbrook suggests that the very word "rape" would chill any sentient man. Maybe for a year
or two, until "This is rape" becomes subject to the same social forces that suggest to Easterbrook that
"no" merely means "try harder."
Soon there will be Harlequin Romances featuring heroines in heaving bodices breathing, "But Sir ... This
is rape," just before being delightedly ravished. Soon, "Oh baby, this is rape," will be the answer to
"Oooooh, talk dirty to me."
The problem is not one of nomenclature. Words signify concepts and "no" still signals the concept of nonconsent, for 100 percent of the world's English-speaking population, 100 percent of the time. The
problem, as Easterbrook illustrates, is that we keep perpetuating stereotypes in which men are cast as
ravening beasts and women are cast as confused madonna/whores. The word "no" isn't the issue. The
fact that men (and some women) still think "no" means "yes" is. We already put the burden on women to
say "no," which is complicated enough. (I don't have to say "no" when someone steals my car keys.) Now
Easterbrook wants them to have to say, "This is rape," a sentence virtually impossible to utter unless you
are truly being violently forced by a maniac. It's tough enough to say "no" in a fraught and nuanced sexual
encounter. But Easterbrook wants us to have to read the guy's Miranda rights.
Saying "This is rape" instead of "No" bizarrely asks women to be even less precise than the status quo. It
may not be rape. It may just be yucky sex. Why do I have to call it rape just to get it to stop?
It's not the place of the criminal legal system to resolve age-old ambiguity in sexual language. The
criminal law exists to punish criminals. Books like Men Are From Mars, Women Are From Venus exist to
resolve age-old ambiguity in sexual language, and it's not clear that's working all that well, either. So, let's
not make our rape laws the social laboratory for fixing human communication. And let's not make it harder
to convict rapists, just so that men and women can say we understand each other a bit better.
The law is perfectly clear: When a woman says "no," even—take note, Kobe's lawyers—after 5 minutes of
necking, she really means no. If Kobe, or Easterbrook, or any other man chooses to hear "try more wine,"
then by all means, bring out the Chianti. But if a man chooses to hear it as "forge ahead, and force me, I
may just be kidding," then he'd best be prepared for the consequences. The notion that men are hardwired to dominate and overcome ambivalent women stopped being cute about 10,000 years ago.
Is sexual conversation confusing? Yes? Is it frustrating? Maybe. Should we change laws because women
are conflicted and men are horny? No.
http://slate.msn.com/id/2089687
Rape Nuts, Kobe Bryant's trial will showcase our mixed-up rape laws.
By Dahlia Lithwick, Posted Wednesday, July 30, 2003, at 4:10 PM PT
Long before the first juror is selected, the nation is making up its mind about Kobe Bryant. Web sites
condemning his accuser as a whore are proliferating. (You can even vote on whether Kobe or his alleged
victim is lying.) Without a filament of evidence, journalists have split: Some call the young woman his
"accuser"; others say "victim." Some complain that he's already been tried and convicted in the media;
others complain that she has been raped again in the media.
How can anyone be so certain about what happened between these two adults in the light of a hotel
minibar? The answer has little to do with this specific case and everything to do with our national hysteria
over rape law—a hysteria that rape accusations are now easier than ever to make and easier than ever to
prove, that rape convictions can now be based on the barest assertions, that punishment for rape is
harsher than for anything save murder. We have created a system that is bad for everyone. The legal
rules for rape have been "reformed" to the point that defendants have few of the usual presumptions of
innocence while victims are still humiliated and exposed at trial.
How did this happen?
Throughout most of Western history, penalties for rape have been excessive. Usually, in both Britain and
America, the punishment was life imprisonment or death. Feminists have long contended that this
toughness wasn't rooted in compassion for the victim but in male property rights. The chastity of a man's
wife or daughter was so valuable that its theft was more serious than other kinds of theft. The other
paternalistic feature of all rape prosecutions was that the victim was inevitably put on trial herself. Until
the 1970s, no woman could prevail at trial unless she showed she'd used "utmost force" (i.e., fought the
attacker to near-death) and unless she had a corroborating witness. Moreover, she could not claim her
husband had raped her (husbands were immune from rape charges in most states until the late 1970s),
and jurors were routinely instructed that women were liars and hysterics. Trials were gruesome
explorations of the victim's sexual history, and convictions were rare.
Understandably then, feminist reformers had a lot of work to do when they set out to make the system
more women-friendly in the 1970s. They managed to enact state laws that actually protected—rather than
victimized—the women who'd been raped. Rape shield laws saw to it that evidence of past sexual
conduct was not admissible. It was no longer necessary to show bruises to prove force. Corroborating
witnesses were not necessary for a conviction (which is why the accuser's testimony alone could send
Bryant to prison for life). It should have been the dawn of a whole new day for womankind. But these
feminist reformers also made things worse in many ways—perhaps because the feminists had a
conflicting second agenda: to promote women's sexual freedom. Complaints of date rape and
acquaintance rape soared. A legal regime that barely did an adequate job prosecuting stranger-in-thebushes rape was suddenly pressed into service to unearth subtle legal nuances of "power" and "consent."
One result of this new legal emphasis on whether the woman consented is that inevitably, it is her
sexuality and her conduct that is still put on trial. Bruises and a torn dress are things the law can
understand. Whether a woman said "no"—or said "yes" but meant "no"—these new questions involve
subtlety and context and past history. What was most shaming about earlier rape trials—the "did she ask
for it" inquiry—is in some ways still the cornerstone of modern rape trials.
Another problem with the '70s reformers was that they couldn't decide whether rape victims should be
treated like any other assault victim or as eggshell victims with unique needs. Some states amended
statutes to destigmatize rape and treat it like any other assault—rape as a crime of violence. Kobe Bryant
has been charged under Colorado's "sexual assault" statute, not a "rape" law. That is why penalties for
rape decreased in some places after the '70s—feminists wanted them to be more in line with assault
penalties so that juries would be more inclined to convict.
But the paternalistic belief that rape was unlike other forms of violent assault put simultaneous pressure
on the law from the opposite direction. Victim's rights groups and law-and-order conservatives worked
hard to keep sentences draconian—which is why the sanctions for rape are still so out of line with any
other form of assault and why probationers and parolees are now labeled sex offenders for life. These
opposing groups also worked to protect rape victims in new ways. Rape shield laws and judges who
preserve the anonymity of the accuser cut against the legal presumption of innocence for defendants,
make it harder for them to know and cross-examine their accuser, and otherwise give the victim privilege
over the accused.
The result of all this compensating and overcompensating for the historical imbalances of rape law is that
somehow the law transformed from insulting blanket paternalism to flabby ineffectual maternalism.
Sanctions remain too extreme, and the protections afforded the victim are also too extreme. Legal rules
that degraded women—requiring a corroborating witness, for instance—have been replaced with rules
that endanger men—allowing conviction based on bare testimony. And all this happens in the face of
penalties that haven't changed enough in 300 years.
The old tendency to put the victim on trial to determine if she had loose morals has simply become a new
system of putting the victim on trial to determine if she's the sort of girl who might have consented.
Ironically, empirical evidence shows that all these reforms have not significantly increased the incidences
of reporting, prosecution, or conviction for rape.
We have reformed, rewritten, and rejiggered rape law, but it is still fundamentally not "fair" in the sense of
providing any real legal certainty. In the end—and unless Bryant's accuser has some shocking physical
evidence—it is still her word against his. Unless we legislate mandatory threesomes, or start videotaping
trysts the way some police departments now videotape criminal interrogations, what happens between
two horizontal people in the dark is ultimately unknowable. While it is true that some women lie, and it is
also true that some men are sexual monsters, it is not at all true that the hodgepodge that is modern rape
law can discern which is which.
http://slate.msn.com/id/2086422
Violence Silence, Why no one really cares about prison rape.
By Robert Weisberg and David Mills, Posted Wednesday, Oct. 1, 2003, at 11:07 AM PT
Imagine the following defense argument being put forth to a judge who's about to sentence a defendant—
an attractive long-haired young man of small but athletic build and gentle demeanor—after he has been
convicted of molesting a teenage victim:
Your Honor, it is unfair and disproportionate to sentence my client to jail, since it will
almost certainly subject him to violent and probably sexual assault while incarcerated. As
the evidence we will proffer shows, there is a 50 percent chance he will suffer an
aggravated assault and at least a 40 percent likelihood he will be raped and sodomized
on multiple occasions while imprisoned. We thus urge you, Your Honor, to recognize that
any sentence of incarceration effectively includes these "secondary" sanctions.
This motion seems fanciful, but it would be perfectly plausible for a defense lawyer to make. In fact, one
wishes more defense lawyers would do so, since all these contentions are essentially true. While hard
data on sexual assaults in prison is not easy to find, and observers dispute the precise frequency, no one
who knows American jails and prisons doubts that rape and sexual assault—usually perpetrated by other
inmates but occasionally by prison staff—are facts of daily life. What is surprising is how easily the
citizenry and the judicial system have come to accept the brutal reality of our prisons and absorbed it into
mainstream culture. A new bill adopted by Congress purports to address this widespread apathy toward
prison brutality. But, whether or not its proponents were sincere, the bill is a superficial gesture of little
substance.
This past July Congress enacted the Prison Rape Elimination Act of 2003, providing $60 million for a twoyear survey of state and federal prisons to determine the pervasiveness of prison rape and creating
various panels to offer remedies. Congressional sponsors of the bill included the most improbable political
allies, and support for the bill ranged from the ACLU and Human Rights Watch to conservative
evangelical organizations. (The clear interest of the latter in promoting religion among inmates has helped
create a strange-bedfellowship with leftist prisoners' rights groups.) The bill passed both houses
unanimously, and President Bush, flanked by two former inmates who had been raped in prison, signed it
in early September. The reason you've never heard of the Prison Rape Elimination Act is probably that no
one who knows our criminal justice system believes it will do much of anything to eliminate prison rape.
Even the more modest earlier title for the bill—the Prison Rape Reduction Act—was an ambitious
predictor of its likely outcome. Because despite its grand words and its sponsors' passionate expressions
of concern, the main thing the law aims to do is collect data, and that may be, paradoxically, both quixotic
and redundant.
It is quixotic because the obvious problems of unreliable observations and underreporting inherent in
prison assault make highly refined objective data a fantasy. It is redundant because the relevant facts are
already clear: A recent report by Human Rights Watch synthesized data and various perception surveys
from around the United States and conservatively concluded that approximately 20 percent of all inmates
are sexually assaulted in some way and at least 7 percent raped. A cautious inference is that nearly
200,000 current inmates have been raped and nearly 1 million have been sexually assaulted over the
past 20 years. And, as HRW notes, prisoners with certain characteristics—first offenders, those with high
voices and passive or intellectual personalities—face far higher probabilities. Moreover, the reports reveal
that sexual slavery following rape is also an ordinary occurrence. Stories abound of prisoners who, once
they are "turned out" (prison jargon for the initial rape) become the rapists' subordinates, forced to do
menial jobs and sometimes "rented out" to other inmates to satisfy their sexual needs.
Of course, prisoners face not only sexual assault from other inmates, but violence of all forms, often
leading to horrific injuries and death. All too typical is the story, repeated by HRW, of a raped Texas
prisoner with obvious injuries who reported the rapes (eight alleged rapes by the same rapist) to prison
authorities. The authorities interviewed the rapist and the victim together, concluded it was nothing but a
"lovers' quarrel," and sent them both back to their cells, where the victim was again repeatedly raped and
beaten even more brutally. Also surprisingly typical is the very recent, notorious killing of Father John
Geoghan, the Massachusetts priest imprisoned for sexual assault, whom the state correctional system
effectively, if unintentionally, sentenced to death in a non-capital punishment jurisdiction.
Even if allocating the time and funds to collecting this additional data were somehow useful, how does the
federal government propose to find it? Does the Department of Justice, charged with overseeing the
study, have some secret methodology at its disposal that it's not sharing with us? And even if all this
further data collection somehow dramatizes the problem, what then? Despite promises (or threats) in the
new law to take prison officials or state governments to task for failure to stop rape and assault, the real
cause probably lies in a more mundane and intractable reality: Inmates will attack inmates if enough of
them live in sufficient proximity, with insufficient internal security, for long enough periods of time. That
means that while Congress funds lots of studies, we already know that the key variables are really the
sheer rates of incarceration in the United States, the density of prison housing, the number and quality of
staff, and the abandonment of any meaningful attempts at rehabilitation. If it is honest, the new DOJ
commission created by the law will suggest what we already know is necessary: that we lower
incarceration rates, reduce the prisoner-to-space ratio, train huge numbers of new guards to protect
prisoners, and abandon the purely retributive and incapacitative function of prisons. But there is no
political will for such changes, which is perhaps why we fund studies of the obvious in the first place.
The truth is that the United States has essentially accepted violence—and particularly brutal sexual
violence—as an inevitable consequence of incarcerating criminals. Indeed, prison assault has become a
cliché within mainstream culture. The news and entertainment media refer to it nonchalantly. Prime-time
TV shows, such as Oz, depict the most awful scenes of rape and carnage. Popular TV dramas routinely
depict police taunting potential defendants with threats of the violence and sexual abuse they will face in
prison. Indeed, last year 7UP ran a TV advertisement in which a teasing threat of sexual assault in prison
was part of a lighthearted pitch for selling soda. The advertisement ran for two months without objection
and was only pulled after criticisms from prisoners' rights groups.
So accepted is assault as part of prison life that an outsider might conclude that on some basic, if
unarticulated level, we think it an appropriate element of the punishment regimen. Perhaps we believe
that allowing prisons to be places of horrific acts will serve as part of the utilitarian deterrent effect of
criminal sentences. Or perhaps we recognize that prison rape and assault are an unavoidable byproduct
of the rape and assault in society generally, so that our goal here is not utilitarian but retributive: that is,
even though we cannot eliminate rape and assault, we can at least reallocate them. Thus, when we
purport to incapacitate convicted criminals, what we are really doing is shifting to them, the most
"deserving" among us, the burden of victimization.
The Prison Rape Elimination Act is better than nothing—unless, of course, it represents the last gesture
politicians intend to make in the direction of addressing this problem. Assuming the study does not blinker
reality by denying the prevalence of the problem, it will presumably mandate or exhort state and federal
officials to monitor, train, and discipline prison staff and enhance inmate security—all under a threat of
withdrawal of federal funds or the firing of negligent officials. Of course, the government would thereby be
implicitly forcing prison officials to spend vast amounts of money they do not have and that Congress is
unlikely to give state legislatures in the first place.
Perhaps while this federal study is under way, there are other, more honest ways of acknowledging what
the American prison system has created. Perhaps every sentencing judge should require that a
defendant headed for prison be given extensive "pre-rape counseling" in the hope that he or she can take
some small personal steps to reduce the risk of attack. Or perhaps we could require judges to demand
data about the differential risks of rape and assault for different types of prisoners in different prisons and
begin to factor such data into any sentence. "You committed murder, so let's send you somewhere where
you're really likely to be raped." In that way we will be at least as brutally honest with ourselves as we are
literally brutal with our prisoners.
http://slate.msn.com/id/2089095
Rape as a disciplinary tactic, Prison guards often ignore inmate rape,
and even encourage it to punish prisoners who step out of line. By Christian Parenti
August 23, 1999 | Eddie Dillard, a 23-year-old gang member from Los Angeles serving time for assault
with a deadly weapon in California's Corcoran State Prison, was a prison malcontent. One day Dillard
made the mistake of kicking a female guard; for this sin and others he was promoted to the top of the
correctional officers' shit list.
Dillard was transferred to the cell of Wayne Robertson, better known as the "Booty Bandit." For a time, his
vocation was beating, torturing and sodomizing fellow inmates while prison guards looked the other way.
This psychopathic serial rapist was the guards' resident enforcer, one whose specialty was reining in
abrasive young toughs.
Dillard protested the transfer, pointing out that Robertson was a known predator. "Since you like hitting
women, we've got somebody for you," came the reply. There, in a tiny box with the Booty Bandit, began
the tragic re-education of Eddie Dillard.
Lessons commenced with verbal abuse and threats, soon progressing to a violent and bloody assault in
which Robertson beat the smaller, younger Dillard into submission. For the next several days Robertson
beat, raped, tortured and humiliated Dillard, tearing open his rectum in the process. Guards and other
inmates listened to the echoes of the young man screaming, crying for help and begging for mercy.
When the cell door finally opened to let him out, Dillard rushed onto the tier and refused to go back inside.
But it was too late: He had been "turned out." He was reduced to a psychologically broken, politically
servile "punk" -- in the prison argot, the lowest form of life. Dillard was now jailhouse chattel, to be
sodomized, traded and sold like a slave. Robertson, on the other hand, received new tennis shoes and
extra food for his services.
When he was released from prison, Dillard told the Los Angeles Times of the trauma he still suffers:
"They took something from me that I can never replace. I've tried so many nights to forget about it, but the
feeling just doesn't go away. Every time I'm with my wife, it comes back what he did to me. I want a close
to the story. I want some salvation. But it keeps going on and on."
Dillard's case is not an isolated incident. Though using rape as a management tactic may sound like an
extreme concept, the Dillard case appears not to have been an isolated incident. The Boston Globe, for
example, reported that guards in Massachusetts prisons have used known rapists in the same fashion as
their California counterparts: "Several prisoners at Shirley [State Prison] said that Slade [a notorious
prison rapist] has had a long history of attacks there, but that he is typically reshuffled by the guards into
cells with 'fresh fish,' or new inmates."
In the age of AIDS, such prison discipline often amounts to a slow-motion death sentence. As one
Massachusetts prison rape survivor put it, "Nowhere in the book of rules was it written that I got to be
here to get raped, that I have to have them destroy my mind, that I am supposed to get AIDS." This same
inmate, who is HIV-positive, said he went to the guards for protection, but their response was: "Welcome
to Shirley. Toughen up, punk."
The story is repeated across the country.
"Everything and everybody in here worked to keep you a whore -- even the prison," explained James
Dunn, a prisoner and onetime sex slave in Louisiana's notorious Angola prison. "If a whore went to the
authorities, all they'd do is tell you that since you [are] already a whore, they couldn't do nothing for you,
and [that you should] go back to the dorm and settle down and be a good old lady. Hell, they'd even call
the whore's old man up and tell him to take you back down and keep you quiet ... the most you'd get out
of complaining is some marriage counseling, with them talking to you and your old man to iron out your
difficulties."
A veteran corrections officer, also from Louisiana, described a similar situation in a recent letter to a
newspaper: "There are prison administrators who use inmate gangs to help manage the prison. Sex and
human bodies become the coin of the realm. Is inmate 'X' writing letters to the editor of the local
newspaper and filing lawsuits? Or perhaps he threw urine or feces on an employee? 'Well, Joe, you and
Willie and Hank work him over, but be sure you don't break any bones and send him to the hospital. If you
do a good job, I'll see that you get the blondest boy in the next shipment.'"
When asked to comment on prison rape, Massachusetts Department of Correction spokesman Anthony
Carnevale explained: "Well, that's prison ... I don't know what to tell you." Inmate-on-inmate rape in male
prisons remains largely ignored, despite the fact that it is central to the politics of incarceration. The group
Stop Prison Rape Inc. estimates that 600,000 men and boys are raped every year in American
correctional facilities. (Other academic studies place the number much lower.)
Most state prison systems, as well as the Federal Bureau of Prisons, lump all assaults, sexual and
otherwise, into a single category; thus, they have no idea how many rapes are reported. Whatever the
real figure, rape appears to be an integral part of prison life and one of its most terrifying features.
Prison rights activists say the struggle to bring attention to prison rape is often an uphill one. "Prison rape
continues because it's a management tool. It benefits the guards and wardens. There's no way around
that fact," explains Tom Cahill, of Stop Prison Rape. Cahill should know. Thirty years ago, as a young
political activist in San Antonio, Texas, he was set up by prison guards and gang-raped.
"I was put in a gorilla cage. That's a cell organized by guards for a 'turning out party,'" says Cahill. "They
told everyone I was a child molester." Six of Cahill's 30 cellmates beat, tortured and raped him for two
days. And like thousands of other survivors, his life was never the same.
"It's the ultimate humiliation, and it works on you for the rest of your life," says Cahill, his voice raising with
anger. "I still feel mistrustful of people, and even among my friends I feel stigmatized. I still have
flashbacks and bouts of incredible, consuming rage."
Cahill's inner turmoil led to the destruction of his marriage. He ended up on the streets, and got involved
in political fights that often landed him back in jail. While proud of his left-wing politics, Cahill now sees
much of his sojourn as a macho and quixotic quest for redemption. Today, at age 62, Cahill lives on the
bucolic north coast of California, where he channels his anger into activism.
Many survivors are not so lucky. Some never pull out of the psychological nose-dive caused by prison
rape and crash into a life of violence, self-destruction and sexual aggression.
Victims of prison rape often turn their anger against innocents when they are set free. John William King - the young white supremacist who dragged African-American James Byrd to death in Jasper, Texas, in
1998 -- is one such case. King was an ex-con; he'd served 21 months for burglary in the Beto Unit, the
toughest joint in Texas. Shortly after arriving in prison, King -- then 5-foot-7 and 140 pounds -- was
attacked by black prisoners and raped, according to his attorneys. He emerged from the dungeon
transformed.
Prison rape victims often implode psychologically after they return to the outside world. Jeannette Eatton
saw that happen to her 19-year-old son, Alan. While serving time for petty theft and under-age drinking
Alan was befriended by an older convict named "Cowboy, " who eventually raped his good-looking young
friend at knifepoint.
"Alan wasn't the same after that. He withdrew and started disliking people. He'd always been a people
person. And he despised gays after that," says Jeannette Eatton.
Six months after his release, a drunken, bitter Alan Eatton crashed his motorcycle and died. He'd just
turned 20. In death, the young man from central Illinois drew an unlikely comparison to the famous T.E.
Lawrence, who was almost undoubtedly raped in a Turkish prison. Lawrence -- solider, author,
adventurer and champion of the Arab cause -- was a classic case of post-rape self-destruction. His
dissolution involved self-imposed isolation, rage and depression; he abandoned his career and then died
in a motorcycle accident that looked suspiciously suicidal.
More often than not, prison higher-ups ignore the problem. Utah prison officials, for instance, seeking
accreditation of the system's medical facilities, maintained that there had never been a single rape in any
Utah prison. Among the many nasty facts deflating the claim was a detailed trial transcript in which one
inmate was convicted and sentenced to 15 years for raping a fellow prisoner.
In Massachusetts, following the Boston Globe exposé, corrections bureaucrats still felt free to deny reality
-- even as a freshly raped convict was in the hospital under going rectal surgery.
Such denials are perfectly rational: To admit that inmates rape each other is to invite lawsuits. In 1994,
the Supreme Court ruled in Farmer vs. Brennan that penitentiary officials are responsible for protecting
prisoners from sexual predation. The case was launched by Dee Farmer, a pre-op transgender person
serving 20 years for credit-card fraud, who was housed in a tank full of violent male prisoners -- where, to
no one's surprise, Farmer was promptly and viciously gang raped.
Since then, several other inmates have tried to sue for damages after contracting HIV as jailhouse sex
slaves. One Illinois case was filed by Michael Blucker, a 28-year-old, married man serving time for a
nonviolent crime. Blucker says he was beaten, gang-raped and then coerced into a form of sex slavery. In
at least two cases correctional officers allegedly escorted Blucker from cell to cell, where he was raped
and forced to service customers who paid his prison-guard pimps with cigarettes, drugs and candy.
Despite the precedent set in Farmer's case, Blucker was not awarded damages. Upon his release he
became a devout born-again Christian who treats his HIV with prayer rather than protease inhibitors.
The transformation from convict to "punk" usually begins in one of two ways. A younger inmate might be
taken under the wing of an older inmate; once debt and dependence are established the older inmate will
rape and "turn out" the young prisoner.
Alternatively, a gang of inmates may attack a weaker prisoner with overwhelming numbers and "punk"
their prey. Once the victim has been "turned out," the aggressors announce their control to the general
population, which in turn cements the deal through its tacit or active approval of the victim's new status.
The freshly minted punk will find himself vulnerable to assault from all sides, as the prison grapevine
informs everyone of his subordinate status. In the interests of survival, the targeted prisoner will usually
choose one inmate as his "daddy" or "husband." In exchange for control of the punk, the "man" offers
protection against other aggressors.
Although the "daddies" have sex with other men, they are, in the hyper-macho cosmology of prison, not
homosexual -- because they are not sexually penetrated themselves. The cult of manhood -- and the
struggle to defend, defile and define it -- is the axis around which the prison sex system turns.
The prison world's other subordinate "gender" is the "queens" -- transsexuals and cross-dressers who
may embrace homosexual sex and a sexually submissive position in the prison hierarchy. Queens suffer
sexual assault, but often they use their sexual powers and feminine charms to play stronger inmates off
one another or to find a husband of their own liking.
By whatever route one arrives, the second sex of the Big House are, like many women outside, forced
into roles that range from nurturing wife to denigrated, over-worked "whore."
The fatalistic logic of the joint explains away the workings of this system with a sort of macho karma: "He
must have wanted it or he would have fought it off." The only one path of escape for the punk or potential
punk is to kill his persecutor. But for a young man facing only five years it's a tough choice: be raped or
commit murder and face a potential life sentence.
Convict and writer Jack Henry Abbot took the latter path. "I was even told by the pigs who transported me
to prison that I was being sent there to be reduced to a punk, to be shorn of my manhood," wrote Abbot in
his classic "In the Belly of the Beast." "They felt I would be less arrogant once I had been turned into a
cocksucker ... Before I was twenty-one years old I had killed one of the prisoners and wounded another. I
never did get out of prison. I never was a punk."
One of the few not-so-dark spots on the landscape is the San Francisco county jail system, run by
maverick former lawyer Michael Hennessey and his right-hand man, Michael Marcum -- whose résumé
includes fratricide and five years' hard time at Folsom Prison.
"The most important thing you can do," explains Hennessey, "is have a thorough system for vetting
prisoners. You have to separate violent and nonviolent offenders and, within those categories, the
vulnerable from dangerous." San Francisco also has a clear protocol that, unlike most jail and prison
systems, does not force victims to name their attackers. Hennessey has also designed his two new jails
to avoid "blind spots," the standard terrain of assaults. In 1998 the San Francisco jail system, with a daily
population of about 2,000, had nine reported rapes. When asked what he thought the real number of
rapes was, Hennessey paused. "I'd like to think it's not too much higher than that."
salon.com | August 23, 1999
http://archive.salon.com/news/feature/1999/08/23/prisons/
slav
es to the System
| _ L O C K E D _ U P _ I N _ A M E R I C A_ |
For vast numbers of women behind
bars, prison is a hell of sexual terror.
---------------------These are boom years for penal America. In
1970, federal and state prisons held less
than 200,000 inmates. By 1997, that number
had increased more than fivefold, to
1,159,000. Local jails held 637,000 more
prisoners. In all, 5.5 million people were either on probation, in jail or on parole at the end of 1996 -almost 3 percent of all adult residents in the country. Among industrialized nations, only Russia, a society
experiencing massive economic and political convulsions, has a higher incarceration rate.
Much of our country's skyrocketing increase in incarceration is because of the war on drugs. In 1983, only
one in 10 inmates was in jail for a drug offense; in just six years, incredibly, that figure had risen to one in
four. In 1996, 23 percent of state prison inmates and 60 percent of federal prison inmates were drug
offenders.
The swollen prison population is also disproportionately African-American (51 percent of federal and state
inmates) and Hispanic (15 percent). Almost one-third of all black men between the ages of 20 and 29 are
under the control of a correctional institution.
Nor is our national mania for locking people up, with its devastating impact on the justice system (where
tales of hopelessly overcrowded court calendars and burned-out judges no longer even raise an eyebrow)
and minority communities, achieving its purpose of slashing crime rates. According to the Sentencing
Project in Washington, D.C., incarceration increased 92 percent between 1985 and 1995, but overall
crime rates remained unchanged. And despite the widely publicized drop in murder rates in recent years,
the violent crime rate was still 14 percent higher in '96 than it was in '85.
In short, America has a prison crisis. And if the health of a society is measured not just by its shining
achievements but by its darkest secrets, the crisis extends beyond the prison walls.
Today Salon launches a series on American's prison crisis with a report on the endemic sexual abuse of
female prisoners by male guards within the U.S. correctional system, which houses 138,000 women.
Future reports will include an in-depth look at a Pennsylvania death row, a report on the rise of high-tech
prisons and an examination of the causes of America's prison explosion.
-- The editors
---------------------BY NINA SIEGAL | Robin Lucas was asleep on a rickety bunk on Sept. 22, 1995, when she heard the
steel door click and saw the silhouettes of three large men entering her cell. Before she could make out
their faces, they had forced her arms back and handcuffed her from behind. Then they were upon her.
They beat, savagely raped and then sodomized her for hours. When they got up to leave, one of the men
stopped, retraced his steps and urinated on Lucas' brutalized body.
Lucas had self-surrendered at the Federal Correctional Institution for women at Dublin, Calif., on Feb. 24,
1994, prepared to serve a 30-month sentence for conspiracy to commit bank fraud. That morning, she
had gotten up, taken her last bath, put on blue jeans and desert boots -- a friend advised her to wear
sturdy shoes -- and entered her kitchen, where family members were arguing about what to make for her
last breakfast. She felt a pang of joy as her relatives assembled around her, and she told them not to
worry, everything was going to be OK.
"My whole attitude was positive," says Lucas. "I looked at this as a time for me to grow, to better myself,
to learn all I could learn while I was there, to get physically fit and to come home and put that behind me
and move on. That's how I looked at it -- an extended version of summer camp."
In many ways, it was like summer camp. Lucas spent the first 17 months in lightweight federal lockups,
first at FCI Dublin, then at Geiger in Spokane, Wash., and then back to Dublin to the minimum-security
facility next to the FCI, known as Camp Parks. She worked as a landscaper, electrician and clerk in the
prison commissary, drove trucks and forklifts and cut hair in the prison salon. Although she was earning
12 cents to 29 cents an hour, substantially less than the $40 hourly wage she'd been making at the hair
salon she owned before her conviction, it was OK with Lucas. "I was just doing my time," she says. Prison
officials treated her like a model inmate, allowing her to work unsupervised outside the prison during the
day.
But in August 1995, at Camp Parks, Lucas got into a fight with another inmate, and because the camp
didn't have its own lock-down, she was sent across the street to the men's Federal Detention Center and
placed in a special housing unit, familiar to all inmates as "the hole." She was locked in her cell 23 hours
a day; her neighbors on either side were male inmates awaiting trial or sentencing for violent crimes, such
as domestic violence, sexual assault and murder. It was there, in the 18th month of her sentence, that
Lucas' nightmare began.
The atmosphere in the men's detention center was vastly different from that in the women's camps. Few,
if any, female officers were assigned to the unit, and all aspects of Lucas' private life, including showering,
using the toilet and changing her clothes, were exposed to the male guards and other prisoners. Male
inmates were allowed to roam the corridors and harass Lucas and the few other women detained at the
center, propositioning her with offers of contraband such as alcohol and drugs in exchange for sex. Lucas
refused, and tried to pass the hours reading books and planning her life after prison.
On her third night in the hole a guard opened her cell door and let a man inside. The setup was
immediately clear, and as the man moved toward her, Lucas put up a fight. He smashed her head against
a wall, cutting open her forehead, and, afraid of the blood, he fled. There was no way of telling time in the
hole, and Lucas didn't know how many days or weeks passed before the second attack. This time, a man
climbed into her bed. Luckily, she was able to fend him off too.
She made a complaint to the facility's captain, who asked her to write an affidavit fingering the men
involved. She requested an immediate transfer, but nothing happened. No one moved her out of the hole,
no one took the key from the guard, no one protected her. Instead, someone leaked her statement to her
assailants. Then came the Sept. 22 attack. Throughout it the three men threatened her life, called her a
"snitch" and told her to "keep her mouth shut."
Lucas and I are sitting on the cold concrete basement floor of a board and care facility for the
developmentally disabled she now manages in Tiburon, Calif., as she assembles a gleaming new lawn
mower she bought to tame the property's few patches of green. It is in this concrete room with a low
stucco ceiling, and two file boxes filled with letters from friends in prison, that Lucas feels most at home.
An African-American woman with eyes set wide apart, kinky hair cropped short, broad shoulders and an
expression that is by turns stern and personable, Lucas speaks with a deep, steady voice.
"I'm still institutionalized in some ways," she says, standing and crossing to a desk placed diagonally
between two concrete walls. "Four o'clock was count at the prison, and I still sometimes stand up then."
There are many habits of prison life as well as memories that will fade over time, but others, like the
assaults, will be impossible to forget. "I made a mistake that cost me 30 months of my life," she says, "but
I'll be doing that time for the rest of my life."
There are some 78,000 women in more than 170 state and 10 federal prisons for women nationwide, plus
another 60,000 who are doing time in thousands of county jails across America. Perhaps Lucas' story
seems like an extreme example of custodial misconduct, but attorneys who work with incarcerated
females say that the vast majority of the more than 138,000 women in U.S. prisons and jails today have
been exposed to some form of sexually related intimidation or assault by correctional officers while
serving their time. This means rape; it means coerced sex in exchange for cigarettes, tampons or phone
calls to their kids; it means guards who stand outside showers, cells and bathrooms leering and making
lewd remarks about the women's bodies; it means guards who stop women in the halls, in the cafeteria,
on the yard to perform pat-searches that include groping of breasts and groins; and it means guards who
corner women to conduct strip-searches 30 times a day.
The horrors of life in men's prisons are already part of our common currency -- prison fights, riots, prison
gangs, inmate-on-inmate rape, the threat of contracting HIV. Our lens on women's prison has a softer
focus, largely contrived by B movies in which tough, curvy broads with sharp tongues and snake tattoos
start cat fights in the cafeteria. A few trays are thrown and peas tossed, but in the end, the matronly
guards restore the order. It's titillating, lurid, harmless. The truth, of course, is much more alarming.
When women enter prisons and jails they essentially become invisible. Statistically, women inmates are
much less likely to be visited by their friends and family, in part because their facilities are in remote
locations. Women have less money at their disposal than most men when they enter prison, since the
crimes that land them in prison in the first place -- drug offenses, theft and welfare fraud -- are crimes of
poverty. Slave wages for their labors behind bars don't help them achieve any level of self-sufficiency,
even to buy basic goods like aspirin or toothpaste. Stripped of their rights, money and contact with the
outside world, they are powerless, helpless and easy to manipulate.
Add male guards, with little training and absolute power, to that equation, and you've got a potentially
lethal combination. Unless the prison administration takes an organized, active role in discouraging
sexual misconduct, it is known to run rampant. And why not? No one is watching. The inmates have no
reliable means of voicing complaints. And even if they did, who is going to believe the word of a convicted
felon over a correctional officer anyway?
As a result, women behind bars are saddled with an added level of punishment, which is, of course, not
sanctioned by any prison system, but is so overlooked and so common as to be essentially
institutionalized.
The sheer magnitude of the problem is hard to fathom. "I have never worked with a single woman in
prison or jail who has not reported some form of sexual harassment or abuse," said Ellen Barry, who has
spent 20 years working as an attorney and advocate for inmates and is now co-chair of the National
Network for Women in Prison and director of Legal Services for Prisoners with Children in San Francisco.
"Sexual abuse and a climate of sexual terror -- the fear of being daily harassed and assaulted by male
guards -- is pervasive throughout the entire prison system."
Lucas and two other Dublin inmates, Valerie Mercadel and Raquel Douthit, filed a class-action suit in U.S.
District Court in August 1996, alleging that they were "sexually assaulted, physically and verbally sexually
abused and harassed, subjected to repeated invasions of privacy and subjected to threats, retaliation and
harassment when they complained about this wrongful treatment." They sought unspecified damages and
changes to correctional procedures and staff training to protect other inmates. Lucas was released from
prison in July 1996 and returned to her home in Tiburon. The other two women were transferred to
different facilities. These three women's highly publicized, successful suit has helped bring some of the
most lurid forms of abuse to light, but there are many women who've been subjected to similarly
horrendous acts, whose voices we've never heard.
Hundreds, perhaps thousands, of other women represented in class-action suits across the nation have
similarly horrific stories. Right now, the U.S. Department of Justice has two federal suits pending against
the departments of corrections in Michigan and Arizona, alleging sexual misconduct on a broad scale in
their facilities. In recent years, similar legal actions have been brought on the state and county level
against the District of Columbia, Colorado, Louisiana, Georgia, Washington state, California and the jail
system in Santa Clara County, Calif.
In December 1996, Human Rights Watch, the international human rights watchdog agency, published a
report called "All Too Familiar: Sexual Abuse of Women in U.S. State Prisons." It painted a grim picture of
life in 11 state women's prisons in the District of Columbia, California, Georgia, Illinois, Michigan and New
York. "We found that male correctional employees have vaginally, anally and orally raped female
prisoners and sexually assaulted and abused them," states the report. "We found that in the course of
committing such gross misconduct, male officers have not only used actual or threatened physical force,
but have also used their near total authority to provide or deny goods and privileges to female prisoners
to compel them to have sex or, in other cases, to reward them for having done so."
The findings and recommendations of the Human Rights Watch report were so scathing, in fact, that they
prompted a rare visit by the United Nations rapporteur on Human Rights, who began a tour of America's
women's prisons on May 20 to look into sexual abuse of women behind bars.
Brenda V. Smith, senior counsel and director of the Women in Prison Project of the National Women's
Law Center in Washington, D.C., said the U.N. investigator will find substantial evidence of violations of
inmates' civil and human rights. "I would say that every jurisdiction has a problem with it," she says, "and
to the extent that they say they don't have a problem it is a problem." Again and again, those who have
investigated conditions in women's prisons walk away with the same conclusion: In women's state and
federal prisons, and in women's jails nationwide, sexual misconduct, assault and harassment are
ubiquitous and persistent facts of life.
One might ask why men are hired as correctional officers in female facilities at all. Ironically, one of the
reasons cited most often is equal opportunity employment. If men were forbidden from working in female
institutions, would that limit women's employment in the men's prisons, which make up 94 percent of all
prisons nationwide? In the 1970s, female prisoners in New York state filed suit against the department of
corrections, arguing that male guards should not be stationed in women's units at night, or be allowed into
certain other private areas of the prison. Attorneys for the case, however, stopped short of arguing that
men should be barred from working in women's prisons altogether.
"We felt it was a balancing act between the 14th Amendment right to be free from employment
discrimination vs. the First Amendment right and Eighth Amendment right" to be free from cruel and
unusual punishment, said Barry.
Another part of the answer arises from the weird logic of sexual politics behind bars: Some advocates for
women in prison argue that some interaction with men, as long as it is tightly regulated, is better for
female inmates' long-term well-being than no contact at all with the opposite sex. Other advocates say
they are increasingly frustrated by those arguments. Debra LaBelle, the lead attorney on a Michigan suit
against the department of corrections, said she has now decided that men should be prohibited from
working in female facilities, because no matter how much training and investigation is done to cut down
on misconduct, the cases of harassment and abuse continue to pile up. "I resisted going there for a long
time, but now I don't know another solution," she says.
Attorneys such as LaBelle chafe at the fact that in some states -- 14 to be exact -- it is still not even illegal
for guards to engage in sexual activity with inmates. Twenty-seven states and the District of Columbia
expressly criminalize sex or "sexual touching" between prison staff and inmates, according to Widney
Brown, a researcher with the Women's Rights Division of Human Rights Watch, while many of the
remaining states dictate only that guards not be "over-familiar" with prisoners, a law that is extremely
vague and difficult to enforce.
California, which boasts the largest number of incarcerated women in the nation, and the world's two
largest women's prisons, criminalized sexual contact by guards with prisoners in 1994. But female
inmates will tell you that hasn't done much to change the way guards in the state -- more than half of
whom are men -- treat women in their custody.
Elly Cruz wears her dark brown hair in layers shrouding her large brown eyes, button nose and mouth
neatly lined with maroon lipstick pencil. She sits uncomfortably, hands tucked between her crossed
knees, in the downtown San Jose, Calif., office of Amanda Wilson, a civil rights attorney who helped her
file suit against the Santa Clara County Department of Corrections in August 1996.
Soon after she arrived at the jail, in January 1995, one of the correctional officers told Cruz that he "liked"
her. This was not news. The guard often followed her on the yard. He had obtained her home phone
number from her custody file and memorized it. He watched her shower at least 14 times and hovered
over her while she slept at night. Cruz informed the captain and several officers, and asked to be
transferred. She was moved to another part of the jail -- but then he was too. He continued to pursue and
harass her, physically restraining her several times to share his sexual fantasies, forcing her to play weird
little word games that demanded that she answer with sexually explicit terms. Although Cruz didn't rebuff
him outright, since he wielded a gun and a baton, she kept her distance. But that didn't work.
"He started getting angry, and I started getting scared," says Cruz, her bottom lip beginning to quiver. She
canvassed prison staff for support, asked repeatedly to be moved again and told her friends to make sure
that she was never alone. But one day, he cornered her, grabbed her by the arm, handcuffed her to a
door and pushed her to the ground. Then he stood over her and, with a steely voice, said, "I can do
anything I want to you, don't you know that?"
Then he let his hands roam free. "I just sat there with my hands behind me, I just went blank, I didn't even
feel him touching me," she says, beginning to cry. "I felt so sick, I just felt so sick because the truth was
that he could do anything he wanted, and nobody was going to believe me."
Cruz was finally moved -- to the adjacent men's jail. There, she was in lock-down while male inmates
passed her cell and watched her whenever they wanted. She later became the lead named plaintiff in
Cruz vs. Vasquez, a class-action suit against the Santa Clara County Department of Corrections, alleging
"a pattern and practice of sexual assaults, intimidation, abuse, threats of violence, sexual harassment and
other violations of law." The case was settled in 1996, and the court ordered several changes in jail policy
and facility design. But little has changed, says Wilson, whose law firm, the Public Interest Law Firm,
recently filed a request to add another 50 plaintiffs to the suit.
Although many women, like Lucas and Cruz, suffered violence in isolation, their experience is one that's
shared by many female inmates, both individually and in groups. At the Santa Clara County Jail, for
example, scores of women have been repeatedly humiliated in mass strip-searches set up by male
guards or with male guards looking on. Donna, a former inmate who did not want her last name used,
describes such a search: "You're brought into a room, and there's a big window so the guards can see
you," she says. "There are four or five women and you're all lined up and made to disrobe. If you happen
to be menstruating, that's too bad. You'll just have to bleed on yourself until this is over. Then they say,
open your mouth, lift up your tongue, pull your hair back, pull your ears forward. Put your hands forward,
expose your underarms, expose the palms of your feet, squat, cough three times, stand up and bend over
at the waist, expose your buttocks and vaginal area and then stand there until they tell you to get
dressed."
At the Santa Clara jail, women were also pulled out of lineup and strip-searched in this way in full view of
kitchen workers, grounds crews and even visiting attorneys and relatives. Prison officials say these
searches are necessary to rout out contraband, but civil rights attorneys say their primary purpose is
intimidation. "It's about power," says Wilson. "And because of the lack of response [from higher-ups],
guards seem to have the attitude that they can do anything."
Rick Kitson, public information officer for the Santa Clara County Department of Corrections, said the
class-action against the jail system is currently being reviewed for summary judgement and that a judge
has ordered the defendants not to comment on the case. "I couldn't comment on the specifics, but I can
say that in fact the county is vigorously contesting the charges and for those individuals where there have
been sustained findings and accusations, the Department of Corrections has vigorously pursued the full
force and measure of the law to prosecute."
It's not just guards. Allegations of sexual abuse and harassment have been filed against prison ministers,
doctors and male nurses, low-level administrators and even wardens. Sexual degradation and humiliation
of women by staff is so ingrained in the culture of many women's prisons that it seems to have become
an accepted mode of control in the custodial environment. In Washington, D.C., for example, quid pro quo
sex with inmates was such a recognized part of the job for 20 or 30 years, says Brenda V. Smith, senior
counsel of the National Women's Law Center, that it was considered an "attractive feature of the work
environment."
The assumption: Once a woman enters a federal or state facility, she gives up all her rights, not only to
her freedom and daily tasks, but to her body and to ward off sexual advances. Complicating the problem,
of course, is that many women in prison have just left the streets, where the same thing was expected of
them, whether they were prostitutes or addicts who gave up their bodies in return for drugs. At the same
time, a huge proportion of women serving time have already been sexually victimized in their lives.
According to Human Rights Watch, anywhere from 40 to 88 percent of incarcerated women have been
victims of domestic violence and sexual or physical abuse either as children or adults. They have already
been "conditioned" to believe that they deserve such treatment, and to remain silent, and the prison
system plays on that vulnerability to intimidate them and keep them in line.
With those subjugative factors in place, it takes an extreme situation and an uncommonly strong and selfconfident woman, like Lucas or Cruz, to tear down the wall of silence. "There's no reason to believe this
was an isolated incident," said Lucas' lawyer, Geri Lynn Green, of her client's assault. "What was isolated
about it was that someone came forward."
If anything, the problem is only becoming worse as the ranks of incarcerated women swell at an alarming
rate. Today, the rate of increase of the female prison population has far outstripped the rate of men
entering the system, and since 1980, the number of women in prison has risen by 400 percent. To keep
up with the expanding population, the system needs more prisons. Since just 1990, the United States has
built 16 new women's prisons, requiring the accelerated training and hiring of thousands of new guards.
Not only has this made it more difficult for corrections departments to adequately train new recruits, says
Brown, but it has disrupted the old, more civil, order of life in women's facilities.
"When younger guards get out of line, it used to be there were older guards who would tell them not to do
that," she says. "When you have prisons that are staffed by all new guards, there's no culture in place that
says that no, it's not OK to do this with the women."
Jenni Gainsborough, public policy director for the National Prison Project of the American Civil Liberties
Union, argues that the proportion of incidents of sexual misconduct may not be increasing at all, but that
there are just more women who are talking. "One of the reason we're hearing about it now is that there
are more women in prisons, more male guards guarding them and more prisons," she says.
When asked to respond to allegations of sexual misconduct by prison staff under its control, the U.S.
Department of Justice says it "takes very seriously all allegations" of sexual misconduct. "Every allegation
is reviewed and, where warranted, referred for criminal prosecution." Considering the large number of
allegations, the number of actual prosecutions hasn't been overwhelming. According to the Justice
Department's own records, only 10 prison employees in the entire federal system were disciplined in 1997
for sexual misconduct, and just seven were criminally prosecuted.
In March of this year, the Federal Bureau of Prisons reached a settlement agreement with Robin Lucas
and the other two Dublin inmates, agreeing not to house any more female inmates in the men's detention
center, to create a confidential mechanism for reporting sexual assaults and to hire a consultant to review
the prison's staff training programs. They also awarded the three women $500,000 to split. But the
system has still not taken any of its employees to task for admitting male inmates into the cells of female
inmates at night -- for a fee.
The Justice Department claimed that an extensive investigation by its inspector general's office "did not
establish sufficient evidence to prove under the standards for prosecution that any specific individual
violated federal criminal law," and the U.S. Attorney's office in San Francisco and the Civil Rights Division
in Washington, D.C., agreed.
No grounds for prosecution? Have they looked at Robin Lucas' face, to see the thick scar near her
hairline where her head was smashed against her bunk, and the smaller scars on her arms and torso?
Did they listen when she told them about how she still bleeds from her rectum? Perhaps they are
conveniently hiding behind the fact that they never sent a doctor in to examine Lucas after the rape, never
took blood samples from her cell and never collected any evidence on her behalf. Still, one has to wonder
how a case that is worth $500,000 to the Federal Bureau of Prisons warrants no criminal charges against
the assailants involved.
It's those kinds of questions that wrack Lucas' brain when she thinks about her share of the money.
"Is that what I had to go through?" she says. "Is that my compensation?" She has used some of the funds
to renovate the board and care home and to buy certain amenities, like the new lawn mower. In May, she
also used some to help her pay for a trip to Phoenix, where she tried out for the WNBA.
I follow Lucas through the narrow corridors of the basement and out to the small backyard where she
shoots a couple of hoops and talks about the Justice Department's response to her claim. "These guys
take an oath to protect and keep order," she says, missing her shot. "He broke that oath. But they're
saying he didn't do anything wrong. That just fucks me up." She misses another shot, walks back toward
the now-assembled mower and jerks its chord, eliciting a violent roar.
"If I would have known that would have happened to me I would have ran," she shouts over the rumbling
of the motor. "I would have ran to the ends of the earth."
SALON | Sept. 1, 1998
http://archive.salon.com/mwt/feature/1998/09/cov_01feature.html
Give Ex-Convicts the Vote, It's a crime to deny
offenders their full rights of citizenship.
By Steve Chapman, Posted Thursday, March 30, 2000, at 12:00 AM PT
When a criminal completes his sentence and is released from prison, he
can take one of two paths. He can revert to his lawless ways, or he can
become indistinguishable from most Americans by working at an honest
job, paying his taxes, respecting the rights of his neighbors, and staying
out of trouble. In the best scenario, the ex-convict will do everything that
good citizens do—exercise his freedom of religion, express his political
opinions, petition the government, be free of unreasonable searches, or
avoid self-incrimination. Everything, that is, except vote.
In 11 states, ex-convicts automatically and permanently lose their right to
participate in elections. Currently, 1.4 million offenders are denied the
franchise. The only exceptions are ex-convicts who obtain pardons, which
are rare. (The states that permanently bar all ex-convicts from voting are
Alabama, Delaware, Florida, Iowa, Kentucky, Mississippi, Nevada, New
Mexico, Tennessee, Virginia, and Wyoming.)
The impact is greatest among racial minorities. "In seven states that deny the vote to ex-offenders,"
reports the Sentencing Project, "one in four black men is permanently disenfranchised." It's fair to say that
this policy is the biggest hindrance to black voting since the poll tax.
Revocation of the franchise as a punishment for crimes goes back to ancient Greece and Anglo-Saxon
England. It is specifically provided for in the 14th Amendment to the Constitution, and the Supreme Court
has upheld the specific laws. But it survives today in America mainly as a vestige of the past—widely
accepted but rarely examined.
When, during a Des Moines debate, Al Gore and Bill Bradley were asked if the practice ought to be
reconsidered, both endorsed the ban. "The principle that convicted felons do not have a right to vote is an
old one, it is well-established," announced Gore, who said he supported the "established principle that
felonies—certainly heinous crimes—should result in a disenfranchisement." Bradley would go no further
than to say, "If someone is in on a nonviolent offense and comes out and is able to go straight for two
years, three years, I think that person ought to be able to wipe his record clean and start the day anew."
Neither seemed to be aware that most states, including Bradley's New Jersey, now let ex-convicts vote.
Four states—Maine, Massachusetts, Utah, and Vermont—go so far as to let inmates vote.
Letting convicts vote is too much. As Stanford law professor Pamela Karlan argues, somebody serving 20
years in a downstate Illinois prison has no business picking the mayor of Chicago, where he no longer
lives. And allowing inmates to vote in their current place of residence presents obvious dangers. Imagine
the occupants of a large, maximum-security penitentiary voting as a bloc and essentially running the
small town in which their prison is located.
But when it comes to felons who have paid their debt to society, it's hard to see what we gain from
blocking the door to the voting booth. It doesn't deter them from breaking the law again, since nobody
who is willing to risk imprisonment is going to be scared straight by the prospect of losing the franchise. It
does nothing to make the victims of the cons' crimes whole.
One rationale is that it protects good government by preventing crooks from voting for lax law
enforcement. Another is that it helps prevent voting fraud. But it's exceedingly unlikely that ex-cons would
organize to elect a corrupt district attorney—or that, if they tried, they would succeed. Nor is there any
reason to think ex-convicts are especially prone to stuffing ballot boxes or rigging voting machines.
Barring all ex-offenders from the polls makes about as much sense as forbidding tax cheats from working
with children. If election security is the worry, we could limit the ban to those who have broken campaignand voting-related laws.
Another justification for denying ex-convicts the vote is that criminals have shown themselves
incompetent to participate in self-government. One famous 19th-century court decision endorsed the
disenfranchisement of ex-convicts because they, like "idiots, insane persons and minors ... lack the
requisite judgment and discretion which fit them for the exercise." But we let minors vote when they reach
the age of majority, and neither the mentally ill nor the mentally retarded are generally prohibited from
voting. By the same logic, a lawbreaker who has atoned for his offense ought to be presumed fit to vote.
But taking account of such distinctions is at odds with the nature of this custom, which is purely, and
mindlessly, punitive. Punishment, of course, is one function of the criminal justice system. Another
important one, though, is rehabilitation: encouraging and preparing lawbreakers to change their ways.
Irrevocable disenfranchisement, however, amounts to a repudiation of the latter goal. It tells the offender
that no matter what he does, he can never fully rejoin the community he sinned against. Instead of
fostering the criminal's healthy reintegration into society, we promote perpetual alienation.
Hard-liners may say too bad—that's the price of making war on the law-abiding. But who suffers from this
sanction? Not the impenitent ex-con, who is unlikely to waste his time on such chump rituals as voting.
The only people who suffer are those who go straight, do their best to abide by social and legal norms,
and hope to be accepted as full members of society. Some ex-convicts want to make the journey from
criminal to full citizen. It's in their interest and ours to help them. Let them vote.
http://slate.msn.com/id/78066
Did the Supremes OK Truth Serum?
By Brendan I. Koerner, Posted Wednesday, Sept. 3, 2003, at 3:50 PM PT
A Time report on Gerald Posner's new book, Why America Slept, cites a passage regarding the use of
sodium pentothal—or "truth serum"—on al-Qaida detainees. According to Posner, the Bush
administration believes its use of the drug is legally justified by a 1963 Supreme Court opinion. What
opinion is he referring to, and what does it say, exactly?
Surprisingly, the case Posner alludes to isn't 1963's Townsend v. Sain, the only Supreme Court decision
to directly address the use of truth serum to extract a confession. Instead, he refers to (without citing by
name) Kennedy v. Mendoza-Martinez, a case that addresses citizenship issues and Selective Service
laws and makes not a single reference to drug-addled interrogations.
Posner contends that administration officials have zeroed in on a famous quip in the Kennedy opinion,
which was written by Justice Arthur Goldberg. The ruling was in favor of the appellee, who had been
summarily stripped of his citizenship after leaving the country expressly to avoid military service. In finding
that Mr. Martin-Mendoza could not have his citizenship revoked without due process, Goldberg noted
that:
The powers of Congress to require military service for the common defense are broad
and far-reaching, for while the Constitution protects against invasions of individual rights,
it is not a suicide pact.
As David Corn pointed out in Slate last year, Kennedy is universally considered a liberal opinion, one that
protected due-process rights rather than allowing the government to circumvent them during times of
crisis. So any Bush administration interpretation that used this line to justify the administration of truth
serum might be legally suspect.
More obviously relevant is Townsend, in which a Florida man convicted of murder appealed on the
grounds that his confession had been extracted with the aid of pharmaceuticals, specifically a cocktail of
Phenobarbital and hyoscine. The doctor who administered the drugs ostensibly did so to alleviate
Townsend's heroin withdrawal; he did not inform the suspect that hyoscine is the same thing as
scopolamine, a form of so-called truth serum. (For Explainer's 2001 take on the effectiveness of truth
serums, click here.) The Supreme Court granted Townsend's request for an evidentiary hearing regarding
the drugs, finding that the prosecution's medical experts had erred by not describing hyoscine's potentially
coercive nature. Despite the ruling in Townsend's favor, conservative scholars argue that the decision is
too narrow to settle questions about the legality of truth serum in every scenario.
http://slate.msn.com/id/2087914
You Have the Right To Remain Silent. But How Silent?
By Julie Hilden, Posted Tuesday, July 9, 2002, at 4:15 PM PT
At this week's congressional hearings on WorldCom's alleged accounting misdeeds, Bernard J. Ebbers,
the company's former CEO, invoked his Fifth Amendment right against compelled self-incrimination—
commonly known as "the right to remain silent." But first, Ebbers made several statements proclaiming his
innocence: "I do not believe I have anything to hide in these or any other proceedings"; "No one will
conclude that I engaged in any criminal conduct or fraud."
Rep. Max Sandlin, D-Texas, charged that by proclaiming his innocence, Ebbers had waived his Fifth
Amendment rights and that now he must either testify in the WorldCom hearings or be held in contempt of
Congress. Is Sandlin right?
Probably not. Had Ebbers been testifying in a criminal trial, his proclamations of innocence would have
effectively waived his Fifth Amendment rights. But congressional hearings are different, and no one's
quite sure what the rule is.
During a criminal trial, any witness—including the defendant—who voluntarily testifies thereby opens the
door to cross-examination on any reasonably related topic. He can no longer invoke his right to remain
silent. Why? Basically because he hasn't remained silent. You opened your mouth; too bad for you.
More theoretically, the law works this way because it would be unfair for a jury to learn only part of a
witness's evidence on a given topic—especially the self-serving portion the witness chooses to share.
The only remedy is to force the door-opening witness to tell the whole story. And since Ebbers'
statements were so broad—"any criminal conduct or fraud"—he would have opened himself to extremely
wide-ranging cross-examination on virtually any topic related to the hearings.
But because Ebbers is a congressional and not a trial witness, the question gets murkier. In the end, the
question would likely be up to Congress itself to resolve—courts would probably deem this a "political
question" and stay out of it.
Some experts argue that trial rules would apply to congressional testimony—reasoning that congressional
witnesses, like trial witnesses, testify under oath, typically have legal counsel, and can decide for
themselves whether to speak or take the Fifth.
But others point out that broad statements proclaiming innocence are more akin to a criminal defendant's
plea of "not guilty" than to his testimony at trial. (After all, such pronouncements do not respond to a
specific question and do not contain specific factual assertions.) And a defendant does not waive his Fifth
Amendment rights simply by entering a not-guilty plea, even if the plea is accompanied by his self-serving
commentary.
The best-known example: O.J. Simpson's 1994 murder trial plea of "Absolutely, 100 percent not guilty."
Simpson was not forced to testify.
http://slate.msn.com/id/2067872