Arizona Criminal Law & Sex Crimes Post

America is a nation under the burden of prisons. Far too many Americans, who ought not be in custody, are wasting their lives away in prison. We have the highest incarceration rate in the world, by far. The United States has 5% of the world's population, but 25% of the world's prison population. In other words, one in twenty people on Earth is an American, while 1 out of every 4 prisoners on Earth is an American. 

A recent article in The Economist magazine makes the point clearly with regard to Louisiana, or as they call it, “Louisiana Incarcerated” ("Louisiana’s prisons: Sheriffs’ delight, While local officials cash in, convicts lose out"): 

EVEN in a country with the world’s highest incarceration rate, Louisiana is extreme. The state imprisons 26% more people, on a per-capita basis, than the next-strictest state, Mississippi. Louisiana’s incarceration rate is almost six times Maine’s and seven times China’s.

How sad that a nation that calls itself "the land of the free" puts so many of its own citizens in prison and jail. We go around the world forcing "democracy" down the barrel of a smart bomb, but we do this to our own people? Why? The George Zimmerman vs. Trayvon Martin case is a perfect example of why, because it shows in crystal clear terms that social justice is incompatible with identity politics (see "Dharun Ravi Convicted of Cyber Hazing Tyler Clementi: A Masquerade of Justice"). 

I understand that many African Americans and others are concerned that George Zimmerman got away with murder, but in the putative quest for justice, ie, Rev. Sharpton and others, many, self-servingly at that, are doing far more harm than good.

The idea that Zimmerman is a racist murderer escaping justice will only push the public to support stricter and harsher laws and sentences. That, it turn, will put even more Americans in prison who ought not be there. And no single group bears that burden more than African American males. For all those who say they are concerned about racism, I wish they would step back and see the forest and not just the tree that is Zimmerman vs. Trayvon Martin.  

"When you look into an abyss, the abyss also looks into you."-Nietzsche 

"A gem cannot be polished without friction, nor a man perfected without trials."- Seneca

We live in a bizzaro nation: The Thought Police watch us, Big Brother tracks our every move, and if we believe the wrong thing, the Political Correctness Police will put us in prison. But the Wall Street criminals who have impoverished us all walk among us unscathed.

No, this is not 1984, Stalin's USSR, or even the dogmatic right wing of the Republican Party. This is the modern day neoliberal state, and identity politics has criminalized what we think ("Student guilty of hate crimes for spying on gay roommate"): 

A former Rutgers University student who used a computer webcam to spy on a sexual tryst of his roommate, who later committed suicide, was found guilty of hate crimes on Friday in a case that put a national spotlight on gay bullying.

Dharun Ravi, 20, faces 10 years in prison on the most serious charge of bias intimidation against Tyler Clementi, 18, who committed suicide by jumping off the George Washington Bridge three days after learning his gay encounter was seen by webcam.

Predictably, for advocates of identity politics, or better yet, vanity politics, this is a signal moment to triumphantly proclaim the verdict as a victory for justice ("Even Nonviolent Crime Needs to Be Fought" by Hayley Gorenberg): 

With regard to the Ravi trial, our legal system recognizes that not all crimes draw blood. It’s possible to strike deep at one’s core without a bullet or a knife blade. Whether or not the proof is mustered to a New Jersey jury’s satisfaction, justice is served by a system that has properly acknowledged that if hate is a legal factor, it should be recognized in all of its most virulent forms, including those leveled at lesbian, gay, bisexual and transgender people for who they are.

The fact that Mr.Clementi is dead is a tragedy, but only one person is responsible for that fact: Mr.Clementi. He is the one who decided to commit suicide, and only he should receive any blame for that fact. I know that gay men and women bear a difficult burden and have much higher rates of suicide. My point is not to minimize that struggle or that Mr. Ravi is a good person, but to send Mr. Ravi to prison is no different from the KGB sending a political malcontent to the Gulag. That Mr. Ravi may go to prison is vile, and it is an example of how far our nation has degenerated.

No one should ever go to prison for what he believes. No one should be punished for anything other than for what he has done. But no longer are the ups and downs of life to be tolerated and overcome. No longer do we endure hazing as a right of passage. Instead, we are all victims and if our feelings are hurt, someone must pay. I blame Oprah, Nancy Grace, and media's promotion of the cult of the victim, self-pity ideology. I blame modern culture that insulates and shelters children without the slightest attention paid to self-reliance and overcoming.

But most of all I blame the modern, neoliberal establishment that equates vanity politics with social justice. But social justice and vanity politics are not, however, as Professor David Harvey has repeatedly made clear, necessarily compatible ("A Brief History of Neoliberalism"): 

Neoliberal rhetoric, with its foundational emphasis upon individual freedoms, has the power to split off libertarianism, identity politics, multiculturalism, and eventually narcissistic consumerism from the social forces ranged in pursuit of social justice through the conquest of state power.

It has long proved extremely difficult within the US left, for example, to forge the collective discipline required for political action to achieve social justice without offending the desire of political actors for individual freedom and for full recognition and expression of particular identities.

For anyone who wonders how the so-called 1% maintain control over the rest of us, the so-called 99%, this is exactly how they do do it: divide and conquer by way of vanity politics. Instead of a nation that is united in its pursuit of social justice, every single particular group, whether it be defined by sex, religion, race, orientation, etc... looks out for itself. No longer are working class Americans, as was the case during the New Deal, the War on Poverty, the Great Society, of all races, sexes, religions, identities united to provide our nation with the highest standard of living attainable for all its people. Instead, we are all just looking out for number 1.  

But that hasn't always been the case. The great economist John Maynard Keynes, the architect of the post-War World Two middle class democracies, was essentially a Christian Democrat, even though he was gay and an atheist: "Western civilization of which the institutional foundations are... the Christian Ethic, the Scientific Spirit and the Rule of Law. It is only on these foundations that the personal life can be lived." ("Hayek versus Keynes: The Road to Reconciliation" by Robert Skidelsky)

While the Ravi/Clementi masquerade of justice was on-going, a former Goldman Sachs executive Greg Smith exposed the Wall Street hog for what it truly is (see "Why Greg Smith Is 'Dead Right' About Goldman Sachs"). But this is our nation now, Mr. Ravi goes to prison for being a jerk, but the Wall Street hog goes unpunished. I wonder how many Americans committed suicide after they lost their jobs and livelihood as a result of the Wall Street meltdown, but yet, not a single Wall Street criminal is in prison. 

And while I am no fan of New Jersey Governor Chris Christie, I hope he does the right thing and either pardons Mr. Ravi or commutes his sentence to no prison time. If you agree, you can tell Gov. Christie that by tweeting him at @GovChristie. Below is the tweet I sent him. You can send your own or retweet mine. 

Please do the right thing and pardon Dharun Ravi. America is not the USSR @GovChristie http://www.azcriminallawsexcrimes.com/social-justice-politics/dharun-ravi-convicted-for-hazing-tyler-clementi-a-masquerade-of-justice/

UPDATE: There is a interesting story in how racism is on the rise in Europe as a result of the economic problems ("European Network Against Racism (ENAR) said in its annual report that economic crisis incites racial discrimination)": 

The most common victims of racism are African nations. General public believes that migrants and ethnic minorities have caused the high unemployment and poor working conditions at the time of the economic crisis, ENAR activists explained...

In Great Britain, for instance, black people are at least six times more likely to be stopped and searched than a white person, ENAR stressed in the report.

I cite this report to make the obvious point that civil rights can only advance when the common class isn't worried about basic surival. It is no coincidence that the civil rights movement started in the 1950s, 1960s, and 1970s, in the heyday of the post-War World Two Keynensian economic miracle. The fact that it did not happen before then, as in during the Great Depression or the Gilded Age, is not because Americans were less charitable or there were fewer civil rights champions around, but because the common class was impoverished and in no mood to care about racism.  

We should remember that lesson now: let's fix the economy, get average American of every identity a decent job and life, and mabye then, if ever, focus on identity politics. 

This is about the saddest story I have ever read. The criminal justice system prosecuting underprivileged parents for enrolling their children in good schools ("20 Years in Prison for Sending Your Kids to the Wrong School? Inequality in School Systems Leads Parents to Big Risks" by Rania Khalek): 

There's a vast difference in quality among public school districts in the US--and parents who try to enroll their kids in better schools may face severe punishment....

Kelley Williams-Bolar, an African-American single mother living in the housing projects of Akron, Ohio.... she was convicted on two felony counts of tampering with court records and sentenced to 10 days in jail with three years probation for illegally enrolling her kids in the predominately white and higher-quality school district next door.

Ten days in custody, however, is no where near as bad as what another mother is facing:

Tanya McDowell, a homeless single mother from Bridgeport, Connecticut, was arrested for registering her 5-year-old son for kindergarten in the affluent school district of Norwalk by using the address of her son’s after-school babysitter, Ana Rebecca Marquez. McDowell is currently facing up to 20 years in prison.

I do not understand how we can claim to live in a modern, Western democracy when citizens like Ms. McDowell are prosecuted, but the Wall Street crooks who almost bankrupted, and still may do so, our nation walk free and unhindered.

In case anyone who reads this blog knows of an underprivileged American who facing felony charges in Arizona for enrolling their children in a good school, please let me know.

One of the interesting things about child pornography charges is the assumption that only men do it. In other words, many people think that only men engage in child molestation and that women would never, for whatever reasons, have child pornography in their possession.  Well, it seems that assumption is not particularly well-founded: 

A Swedish court on Tuesday convicted 23 women and one man of child pornography offenses in what investigators called a unique case because of the number of female perpetrators...

The court said the women received scores of sexually explicit video clips and photographs of children from the man and discussed them online with him. Some said they liked the images or shared sexual fantasies about the children, and one woman sent pornographic images of children to the man, the court said.

The material showed girls and boys of various ages, from toddlers to teenagers.

(From "Sweden: 23 women convicted of child pornography")

As odd as the female involvement in this case sounds, there are two important side notes to the story. First, while the possession of pornographic images was extensive, there was no allegation or evidence that any child was actually touched. In the broader context, and as I have written before "Should Mere Possession of Child Pornography Mean Decades in Prison?", we should rethink the idea that if someone posses child pornography that automatically means they will molest children given an opportunity. That reasoning, of course, is part of the reason behind the extremely stern prison sentences for possession of child pornography in Arizona. 

That leads me to the fact the sentences in this Sweden were remarkably light in comparison to Arizona: 

The Falu District Court gave the women, aged between 38 and 70, conditional sentences and fines ranging from 2,500 to 18,000 Swedish kronor ($380 to $2,700). It also sentenced a 43-year-old man to one year in prison for aggravated child pornography.

In contrast, in Arizona every count of sexual exploitation of a minor is presumptive 10 years in prison. That is why some defendants in Arizona get decades in prison for similar conduct to this story (see "Robert Thomas Flibotte Gets 90 years in Prison for Possessing Child Porn").

So who has it right, Europe or the US? While I certainly believe incarceration rates in the United States, and in Arizona in particular, are far too high, I also think Western Europe is too soft on crime. The European justice system is too soft because it is too individualistic. It determines punishment based exclusively on the effect on the individual and not society on the whole. In other words, Europe focuses exclusively on incapacitation, reform, and deterrence of a particular defendant, but ignores general deterrence in entirety. 

For example, Norway might sentence mass murderer Anders Breivik to only 21 years in prison (Norway shootings: Anders Breivik cannot get more than 21 years- Despite his mass killing spree, the maximum sentence Anders Breivik could be handed by a court is just 21 years.) The thinking in Europe is that 21 years is enough time to reform and deter Mr. Breivik from committing crime again. But what Europe does not realize is the message it sends to the public at large: while 21 years in custody may stop Anders Breivik from committing more crime, it is no where near enough punishment to deter future Anders Breiviks from thinking "I kill 90 children, spend 21 years in prison, and then come out as a celebrity? Sounds like a good deal to me." 

There is a very good article in yesterday's Arizona Republic by reporter Bob Ortega about Arizona's overly strict sentencing laws "Arizona prison sentences among toughest for many crimes". The basic point is that even though many people claim these sentencing laws make Arizona safer, no evidence supports that claim and, in fact, it may be bankrupting the state: 

Politically, that has been popular, but the practice carries a hefty price tag. This year, the state will spend more than $1 billion to keep prisoners behind bars, and that figure will balloon if Arizona carries out plans to build or contract for as many as 6,500 new prison beds over the next five years...

Nationally, crime rates have been falling for decades. Even with more convicted criminals on the street, many of these states have seen their crime rates fall as far or farther than in Arizona, where the prison population has climbed 50 percent over the past decade.

Unfortunately, despite the well intentioned effort of Rep. Cecil Ash to reform sentencing laws, too many people, both those with an economic interest and those without, dogmatically cling to the idea that more time is always better.  For an example, see the comment by "John Wayne" at ABC 15 KNXV's reprint of the Ortega article: "The prison industry also creates job for normal law abiding people." "Wayne" is essentially, and unintentionally as the term is not complimentary, pointing out what economists call "penal Keynesianism". 

To me, the idea that we should put people in custody and restrict the freedom of our nation's people to create jobs is absolutely vile. Is is especially vile when one considers how many hundreds of thousands of American servicemen died preserving personal freedom and liberty for our people.  All those Americans died in vain just so some people can make a buck? The profit motive should have no place in deciding who goes to prison and for how long. 

Donald Lapre, the infamous Phoenix based TV pitchman, committed suicide while in custody in a private prison complex in Florence. He was in custody on federal fraud charges. As Eddi Treviz reports in today's Arizona Republic "Phoenix infomercial pitchman Donald Lapre found dead":  

U.S. Marshals said Donald Lapre, a Phoenix-based infomercial pitchman, was found dead in his cell Sunday at a federal-contract facility in Florence. Lapre was being held on fraud charges linked to his vitamin-selling business. He was arrested in Tempe earlier this year. Lapre was found about 8:30 a.m., unresponsive in an apparent suicide attempt, said Matt Hershey, supervisory deputy U.S. Marshal.

Federal officials have not said which private facility it was or who was running it. My well-founded suspicion is that it was a Corrections Corporation of America facility. If so, this is not the first death of an inmate at CCA. See "The ACLU suing Corrections Corp. of America-Organization claims violence is out of control at the Idaho Correctional Center":

The American Civil Liberties Union is suing state prison officials and a private company, claiming violence is so rampant at the Idaho Correctional Center that it's known as "gladiator school" among inmates... 

The lawsuit says Idaho's only private prison is extraordinarily violent, with guards deliberately exposing inmates to brutal beatings from other prisoners as a management tool. The group contends the prison then denies injured inmates medical care to save money and hide the extent of injuries.

In fact, it seems that CCA guards at the facility were taping fights among inmates "Idaho prison guards 'filmed watching inmate attack'": 

Prison surveillance cameras in Idaho have captured footage of one inmate beating another prisoner, while guards looked on, AP news agency has reported. The man being attacked, Hanni Elabed, appears to bang on a guard station window for help, the video obtained by AP shows, but guards do not intervene.

Also, at least nine deaths occurred at a CCA facility in Eloy, Arizona. See "Officials Hid Truth of Immigrant Deaths in Jail." 

My hope is that these deaths, tragic and preventable, put pressure on our leaders to do the obvious and necessary thing: ban private prisons. 

Which is more important, freeing the innocent or convicting the guilty? With all due deference to the rules of logic, I say both are more important because we cannot free the innocent unless we convict the guilty. 

There is a very famous comment by the English legal commentator Blackstone along the lines of "it is better to set free 10 guilty men than to convict one innocent man".  I remember the first time I heard that statement thinking to myself, as I am sure others have as well, what a wonderful sentiment that point embodied. On the face of it, it sounds very democratic and progressive. But now, after a few years working as a criminal defense attorney, I am not so sure that viewpoint is a good one.  While it may be inspiring and heartwarming, it may in fact be very harmful and destructive: that it, destructive to the rights of criminal defendants.  Is it better to set 10 guilty men free than to convict one innocent man?

As a first step, we need to determine what the objective of our criminal justice system is.  Is it justice? Is it revenge or retribution? Is it deterrance? I believe the answer is much less general than a nonspecific term like "justice".  The objective of our criminal justice system is simply about making our population behave a certain way under the least onerous terms possible. Our political system determines how we want people to behave, for example murder and rape are illegal, and the criminal system sets about creating the right incentives for people to do what we want them to do. 

The important point here is the right incentive, not just any incentive to get the job done.  If probation is enough to keep people from from stealing, then there is no reason to make the punishment 5 years in prison just because 5 years in prison might feel or seem better. If probation is enough to make sure someone who posses child porn does not do it again or molest any children, there is no reason to give that same person a 90 year prison sentence. That is the problem with mandatory sentencing laws. To make sure there is no disparity in sentencing among different types of defendants, the legislature overreacted and mandated that everyone gets the top sentence. If you complain to your mom that your brother got too much cake and you not enough, your mom takes the cake from both you and your brother.  Thus, the punishment might be equal, but not the right one.

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I know this point is getting old and tedious, but that very fact in itself means there is a serious problem: why do civil servants, and police officers in particular, get away with behavior that would land average, everyday Americans in prison for decades?  

This time I am referring to a very disturbing story in the Arizona Republic by JJ Hensley: "Peoria man sues Sheriff's Office, cites abuse by deputies". During a recent NASCAR event in Phoenix, Michael T. Wyman, saw his friend, Ernie Griego, and gave him a bear hug. Apparently, in the eyes of Maricopa County Sheriff's deputies providing security at the event, that was enough to attack Mr. Wyman, arrest him, and then charge him with multiple felonies.  According to Mr. Wyman, Deputy Preston Boyer even came up behind him and started to choke him, and another deputy tasered him in the back, and his son as well. 

Fortunately for Mr. Wyman, the Maricopa County Attorneys' Office, responsible for prosecuting this case, dismissed all the charges against Mr. Wyman. Now Mr. Wyman is suing Sheriff Joe Arpaio and the Maricopa County Sheriff's Office.

Michael T. Wyman, 50, maintains in his lawsuit that he greeted an old friend with a bear hug near the track's Speed Cantina during a NASCAR race last November when, without warning, a deputy put him in a choke hold. The deputy threw him to the ground, Wyman alleges, and another deputy began shooting Wyman in the leg with a stun gun.

Wyman was charged with resisting arrest, aggravated assault and disorderly conduct for his role in the Nov. 13 incident, but a judge dismissed the charges in March at the request of prosecutors.

The important point about this case is that all the available evidence indicates the deputies overreacted, and then, to protect themselves from sanction, blamed everything on Mr. Wyman, even though he did absolutely nothing wrong. According to the story, "a handful of witnesses acquainted with Wyman, including a firefighter and a 911 operator, could verify Wyman's claims."

According to Mr. Wyman's attorney, Daniel Treon:

Wyman continues to experience nerve damage from the stun-gun shock and has undergone surgeries, including a skin graft, to repair damage from the weapon and broken bones from a deputy stomping on Wyman's foot...

The injuries appear to be so bad that Mr. Wyman cannot go back to work at his job with Ricochet Excavating. 

If it is true that the deputies overreacted, I don't understand why the worst thing that will happen to the deputies is that the department and Sheriff Arpaio get sued. It does not even seem like they will lose their job. But imagine if these were not law enforcement but regular citizens who overreacted at a bar fight. Wouldn't they be facing jail time for aggravated assault with a deadly weapon and charges for false reporting? Why should deputies get off easy just because they wear a badge? 

Even as bad as the injuries Mr. Wyman suffered seem to be, by far the worst part of this story is the fact it seems the deputies were perfectly willing to use their authority not only to cover up their wrong doing, but were even willing to charge an innocent man with multiple felonies.  

I wish the next time the media does a story in which they think an guilty person is acquitted, for example Casey Anthony, they would also do a story in which an completely innocent man is wrongly accused. Imagine if in this case there were no civilian witnesses to corroborate Mr. Wyman? He would now be facing decades in prison for simply being the victim of police brutality.

My own experience with Maricopa County Sheriff deputies, usually at the Maricopa County Superior Court, is that while plenty of them are polite, plenty of them are cowboys as well, for example Deputy Adam Stoddard. And my experience with the always courteous and professional Pima County Sheriff deputies puts Sheriff Joe's gang to shame. 

If someone has downloaded pornographic images of children, should they automatically go to prison? For how long? Is mere possession of child pornography sufficient reason to send someone to prison for decades, even if the suspect never touched a child? Recently, a Payson man received 90 years in prison for merely possessing child pornography, for which the sentencing judge called the sentence "clearly excessive", but had no choice because of mandatory sentencing laws (see "Robert Thomas Flibotte Gets 90 years in Prison for Possessing Child Porn"). Another man, Gulf War veteran Joseph Lauricella, just received a five year sentence from Judge Derek Carlisle in Mohave County (see "LHC Veteran Apologizes During Child Porn Sentencing" by Dave Hawkins). 

I know that some people who read this post will have the visceral reaction that of course, if you someone has child pornography, put them in prison and throw away the key. Or even better, put them on a desert island and and forget about them. To those people, this blog is not for you, and if you feel the overwhelming desire to vent your self-righteous frustration, find another forum.  This blog is for people who can actual consider actions and consequence, and who do not seek every chance to validate their own self-congratulatory moral superiority. 

In some states, merely possessing child pornography is a misdemeanor, but in Arizona it is a felony with a minimum sentence of 10 years for each count. Arizona's statutory scheme is even more severe than the notoriously harsh and rigid federal sentencing guidelines.  The mandatory minimum in federal court is five years, or half what Arizona requires.  But is either right?  

According to the no so liberal Wall Street Journal, some federal judges do not believe mere possessors of child pornography are an actual threat and that the Congressional mandatory minimums are excessive. In fact, they are nothing more than puritanism in the guise of public safety ("Making Punishments Fit the Most Offensive Crimes" by Amir Efrati). 

These acts alone are disgusting to most people. But not everyone buys into the idea that they warrant two decades or more in prison. Federal judges around the country are speaking out against what they view as harsh mandatory and recommended sentences, spurred by Congress in recent years.

The sentencing guidelines for child pornography crimes "do not appear to be based on any sort of [science] and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses," wrote U.S. District Court Judge Robert W. Pratt.

The important point here is these are cases in which there is absolutely no reason to think the suspects actually ever touched a child, only that they possessed images.  

In possession cases where there is no evidence that defendants sought to abuse minors, several judges are giving much lower sentences than the guidelines intend, which they are allowed to do if they believe the recommended punishment doesn't fit the crime...

William Griesback, a federal judge in Green Bay, Wis., wrote: "The fact that a person was stimulated by digital depictions of child pornography does not mean that he has or will in the future seek to assault a child."

Certainly, the point of these judges is not that possessing child pornography is tasteful or laudable, just that automatically handing out decades in prison for mere possession is vindictive.  And such vindictiveness has no place in a democractic and thoughtful America. 

Also see this article in the New Times Magazine called "The price of a stolen childhood" NYTs ICP and Restitution 1-24-13.pdf" By Emily Bazelon

This is the final part in a three part interview with Arizona Representative Cecil Ash concerning the very important topic of reforming the Arizona penal system and changing how sentencing is done in Arizona. Those who wish to help may contact Rep. Ash at his legislative office at 602-926-3160 (cash@azlag.gov), or through his webpage at www.cecilash.com

Part One of my interview is available here.

Part Two of my interview is available here.

9) Realistically, what specific sentencing reforms do you believe Arizona will enact in the next few years?

Rep. Ash: You ask what reforms do I believe we will enact? It's hard to say which reforms a majority will be persuaded to pass. But these are some that I am hopeful for.

(1) I hope that we give judges more discretion in their sentencing. Right now, prosecutors frequently tie judges' hands to prevent them from issuing sentences judges believe are appropriate. It would be a significant improvement if judges had the option of choosing between consecutive and concurrent sentences, rather than having consecutive sentences mandated by the legislature.

(2) I believe we can provide for a medical parole of those whose physical condition renders them no longer a threat to public safety. These inmates constitute a great burden on the staff and resources of the Department of Corrections.

(3) I believe we can provide more options for the county and courts in drug cases to allow for deferred prosecution in conjunction with rehabilitation efforts that will reduce the defendants that actually go to prison and get a felony on their record.

(4) I believe we can make some changes to the sex registry so we are tracking the felons who actually pose a threat to the community, rather than those who, for example, engaged in consensual sexual encounters. Right now, there's little distinction.

10) Finally, why should the average, law abiding Arizonan embrace the reforms you are proposing? How will sentencing reform benefit them and their families?

Rep. Ash: To the average person who has little or no contact with criminals, it may be difficult to see the benefits on a micro level. But on a macro level, there are great savings to be had. People complain that we are investing too little in education and health care. You never hear the complaint that we are investing too little in our Department of Corrections -- after all, nobody thinks about it, "out of sight, out of mind." But in truth, many of these inmates have families on welfare and AHCCCS. We are spending over 11% of our state budget on Corrections. There are more productive ways to spend our money. 

Beyond that, there is a moral imperative here: you are taking away one of life's most precious gifts -- someone's liberty. There is a moral responsibility when you do that to make sure that it's justified, both in terms of the nature of the punishment and length of the confinement. Someone has said, "We send people to prison as punishment; we don't send people to prison to be punished." That's what the despots do. That is not America.

Thank you Rep. Ash for not only taking the time to answer my questions, but also concerning yourself with this just cause.

Rep. Ash: You're welcome. I keep thinking that sometime I should quit the legislature and enjoy retirement. However, everyday I am reminded that there are inmates sitting in prison who shouldn't be there. It's a perversity that we are punishing people and taking away their freedom for crimes that in many cases involved no serious physical harm and no serious financial loss to anyone.

I hope your community will support this effort. Everyone of your readers has a senator and two representatives who should hear from him or her that they believe it's time to address these issues.

Those who wish to help may contact me at my legislative office at 602-926-3160 (cash@azlag.gov), or through my webpage at www.cecilash.com  

Thanks.

I wrote before that I don't believe juries make mistakes.  Juries are very good, much better than judges, at figuring out what happened in a particular case.  In the vernacular of the judicial system, I would say juries are very good "triers of fact." American law is based on English common law, which has for hundreds of years divided the "trier of law" and the "trier of facts."  Judges figure out the law, while the jury figures out the facts. I think that distinction is a very good one, and most of the sentiment for eliminating jury trials is nothing more than anti-democratic elitism. 

Having said that though, the guilty verdict in the James Arthur Ray trial bothers me. Even though I have written quite a bit about the double standard of our legal system- what I call Prison Democracy- it seems that the exact reverse happened here.  I hope that it is not the case that Mr. Ray was only charged and convicted because he is famous, but with the weak evidence against him, I can't help but think that.  While I don't think famous or established persons should escape due punishment, I also don't think they should suffer from unwarranted accusations either. 

So did the jury make a mistake?  I never read the transcripts of the trial or saw any of it; so without more information I would say no.  But the verdict- criminally negligent homicide- could still be bad as a result of odd or incomplete facts.  The defense attorneys' for Mr. Ray claim that the verdict is a result of prosecutorial misconduct. (Arizona self-help guru deserves new trial in sweat lodge case): 

A self-help guru who was convicted in the deaths of three participants in an Arizona sweat lodge ceremony deserves a new trial...Ray's attorneys went before a Superior Court judge in Yavapai County, Arizona, claiming he should be tried again because of prosecutorial misconduct...[t]he defense claims the prosecution did not disclose evidence on time.

The defense's position since the deaths is that the adults who participated in this event knew full well the consequences and dangers they were facing, and that Mr. Ray never misled them.  In fact, it is in part because of those dangers that they wanted to be part of the sweat lodge.  Thus, this case seems to me the classic example of something that should be handled in our civil personal injury system, and not the criminal system. 

I just checked the Maricopa County Superior Court website to see if Arizona State Senator Lori Klein is facing felony charges.  According to the website, she is not.  So now the question remains, why not? According to a news story at Arizona Republic, she admitted to pointed to a loaded handgun at reporter Richard Ruelas.  On a recorded conversation, she laughs and casually mentions the fact the handgun has no safety and has a laser site.  With this sort of evidence,  I can't help but think the obvious, that if Ms. Klein the state senator was instead Mr. Smith the car mechanic, she would already have been indicted. 

Assault is defined under ARS 13-1203 and includes "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury".  It is aggravated assault if the assault is committed with a deadly weapon or instrument (ARS 13-1204).  Deadly weapon includes an unloaded firearm. 

Endangerment, ARS 13-1201, is:

A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury 

B. Endangerment involving a substantial risk of imminent death is a class 6 felony.

The fact that Mr. Ruelas does not want the state to prosecute her is completely irrelevant.  In a criminal proceeding, the victim is the not the one to decide who the state will and will not prosecute. The victim is only a witness, not a party or litigant. 

And as far as "no harm, no foul"- no one was hurt so why prosecute her- that is completely irrelevant as well. I can't imagine someone stopped for drunk driving convincing a jury that he should not prosecuted because no one was hurt. And a loaded gun, even if unintentional with no ill will, is just as dangerous, if not more so, than a drunk driver.  I have seen many cases in which DUI defendants have been charged with felony endangerment for the risk they posed to other drivers, even if no one was actually hurt. 

More to the point, there is harm even if Mr. Ruelas was not himself hurt.  What about the person, and there has been plenty of publicity in this matter, who notices the fact Ms. Klein is not prosecuted and then decides there is nothing wrong with casually mishandling a firearm, and then someone is hurt as a result? The Arizona laws on firearms, just like FAA regulations, were written in blood.  And to ignore them because nothing bad may have happened this time, especially in a publicized case, puts people in danger. It seems both Mr. Ruelas and the authorities have forgotten that the law is not just to punish past crimes, but to prevent future ones as well.  And as I wrote with regard to the Susan Brock mess (Susan Brock Gets 13 Years: Arizona Sex Crimes Sentencing Part Two), the bigger the issue, the stronger message our criminal justice system must send. 

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I wish every time the media does a story like Casey Anthony or OJ Simpson, about someone who they think is obviously guilty getting away with murder, they would do another story about America's place as the nation with the world's highest incarceration rate, even higher than allegedly rogue totalitarian nations like China, Iran, or North Korea.

Why are so many Americans in prison?  The statistics are overwhelming.  The United States has the highest documented incarceration rate in the world. At year-end 2009 it was 743 incarcerated per 100,000 population. According to the U.S. Bureau of Justice Statistics (BJS) 7,225,800 people at year end 2009 were on probation, in jail or prison, or on parole — about 3.1% of adults in the U.S. resident population. 9.2% of African-Americans are prison, and 70% of the American prison population is non-white.

While the United States only has 5% of the entire world's population, we have 25% of the world's prison population.   Our incarceration rate is so high, that second place Russia has an incarceration rate 40% lower. In modern history, only Stalin's pre-World War Two Soviet Union- the one that had the ideologically driven purges and dreaded NKVD- had a higher incarceration rate than our nation does now.  The median for all other nations is an incarceration rate 1/6th of the United States. 

Some might say these rates are necessary to keep Americans safe from violent crime, but is that the case? For a great discussion of this point and the absurdly high incarceration rate, see "U.S. prison population dwarfs that of other nations" by Adam Liptak of the New York Times. 

I can't but help the fact part of the reason we have such a high incarceration rate is the importance the criminal justice system has in creating jobs.  For a detailed exposition of this point and comparison between Military Keynesianism and Penal Keynesianism see "Can Penal Keynesianism Replace Military Keynesianism?" by L. Randall Wray. 

Law Professor Michael O'Hear of Life Sentences Blog "Tracks New Cases and Research on America's Supersized Sentences" has a wonderful post at his blog about the different causes of high American incarceration rate. One of the things he mentions is the strictly non-punitive factors involved in determining how many Americans are in prison.  

What I mean by non-punitive factors is that when people speak of the rationale or purpose of criminal law, it is to keep society safe by way of general deterrence, specific deterrence, and incapacitation. General deterrence is the message to people at large that you cannot do certain things.  Specific deterrence is the message to a particular person, the defendant, that you cannot do certain things.  And incapacitation is keeping dangerous people out of society and in custody. 

Non-punitive factors would include things like political motivation, like getting more voters, and economic factors, like Prison Keynesianism, creating a demand for jobs by incarcerating more Americans.  In his blog, Professor O'Hear mentions Heather Ann Thompson’s new article, “Why Mass Incarceration Matters: Rethinking Crisis, Decline, and Transformation in Postwar American History,” 97 J. Am. Hist. 703 (2010).

Among other things, while typically conservative Republicans are seen as the force behind political pressure increasing American incarceration rates, that might not be entirely correct: 

Although it is well-recognized that Republicans have emphasized law-and-order themes since at least 1968 and that the era of mass incarceration has also been an era of conservative domination in national politics, Thompson challenges the conventional view that mass incarceration was a result of the right’s political success.

Liberal Democrats, even the one behind the War on Poverty and the Great Society, Lyndon Johnson, could be as much to blame, or credit, depending on your viewpoint, for American incarceration rates: 

She argues that liberal Democrats, no less than conservative Republicans, embraced law-and-order themes in the 1960’s. President Johnson, for instance, made crime a major political issue well before the pivotal ‘68 election. Thompson thus suggests that mass incarceration might have proceeded even if Democrats had retained their preeminent position after 1968.

Interestingly, in his blog post, Professor O'Hear does not mention Prison Keynesianism, but instead he mentions his belief that increasing state penal budgets have decreased the budgets for social services: 

And maybe there is another important political effect that Thompson does not discuss, albeit more at the state than the national level: burgeoning corrections budgets have created fiscal crises in many states. These crises, in turn, provide justification for dismantling the social service infrastructure and privatizing everything in sight, thereby crippling reliably Democratic constituencies (government employees, social service providers, social service clientele).

On this last point I tend to disagree not out of political reasons, but out of ignorance of economic factors.  I am certainly no admirer of rabid privatization or neoliberalism, but without evidence, I remain skeptical of this point.  I am, however, a complete believer in that Democrats, including the horrid New Democrats like Bill Clinton, deserve at least part of the blame for the fact too many Americans are in prison. 

Is innocence different?  Is there something about not convicting the innocent of a crime that is fundamentally more important than any other goal in the criminal justice system?  Professors Michael Risinger and Lesley Rissenger seem to think so.

But what has been generally overlooked is that “innocence is different” also.   What we mean by this is that the protection of the actually innocent from conviction should be a paramount goal of the criminal justice system against which all procedural rules should be judged. Despite the traditional rhetoric that recognizes this, too often the protection of the innocent takes a back seat to other goals, such as the conviction of the guilty- or even, ironically, the protection of the guilty. 

But, as the writers also note, there may be "stiff opposition" against reform of the criminal justice system from, as the authors actually are willing to claim,"[t]he defense bar may fear that some reforms will bring new disadvantages to the majority of their clients (the factually guilty ones) for the benefit of the innocent minority."  The writers then go on to list a number of proposals that would in their minds, free the innocent and convict the guilt better than the current system does. 

My opinion is that while there is certainly good reason to reform the criminal justice system, the manner in which they propose is not realistic.  First, as someone who has tried many cases and dealt with many juries and judges, I believe we have reached the limit of society’s ability to determine guilty from innocent, especially when the matter turns on intent or the state of mind of the defendant. We are at the point of irreducible uncertainty, and any attempt to increase the accuracy of the current system is doomed.   I would also add that as a former public defender and current criminal defense lawyer, the suggestion that the defense bar would oppose any reform that would increase acquittals of the innocent is, in polite terms, complete nonsense.  No ethical defense attorney wants anything more than the innocent to be free.

But my biggest complaint is that in the entire paper, the writers do not mention sentencing or incarceration rates in the United States. With their singular focus on guilt and innocence, it seems the writers have fallen into what Nietzsche called decadence and the anarchy of the atoms.  But one cannot intelligently discuss reforming criminal procedure without discussing prison sentences.   It would be like a doctor discussing drug treatment without mentioning getting better.  Any reform of criminal procedure must take into account the staggering American incarceration rate, which leads me to the ultimate point:  of course, setting the innocent free is of utmost important, but the ultimate goal of the criminal justice system is not setting the innocent free, but rather, making society conform to a set of behavior with the least onerous terms possible. That would mean keeping Americans safe with the fewest number of Americans in prison.  As I previously wrote: 

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How can we reduce crime? The short answer is social equality, including legal equality. The basic point is that disparity in status is the problem while social equality is the solution. Marx was wrong when he wrote the fundamental commodity in society is labor and that primary movement is class conflict. In reality, the primary movement is promoting a genetic legacy.

We, human beings, are no different from elephant seals or any other animal. We are driven by our primal urge to replicate. What all that means is that a large number of single, unmarried men is an aggravating force, while a low number of single, unmarried men is a civilizing force.

I believe the much touted civilizing power of religion, in particular Christianity, is that it tends to equalize the sexual opportunity between high and low status males, thereby decreasing violence. Before getting into the details, I want anyone who reads the following to know I am no Marxist or Communist. I am a firm believer that the two party system and the middle class are what made America the greatest country on Earth, and as soon as we lose sight of that fact we are doomed.

First a couple of assumptions. The first assumption: all else being equal, for any given women, any women will be indifferent between any two partners so long as utility is the same. In other words, if a woman could chose to be the sole partner A and thereby receive x amount of utility, or be the nth partner of partner B and thereby receive x amount of utility, she will choose partner A 50% of the time and partner B 50% of the time. Second assumption: all else being equal and for any given man, he will always choose to add an additional female partner so long as there is any additional utility. That assumption is provable by the simple fact men are physically larger, which is the result of the fact that evolutionary speaking, naturally selection gave larger men more access to females.

The reason this is important is because in a polygamist society females will congregate to high status males and thereby leave the vast majority of men single. These single males will be a strong, violent force in society. Thus historically, monogamy has favored the vast majority of men, but disfavored females and high status males. And when low status males finally achieved political power they are the ones who voted to create a monogamous society, which was at the expense of high status males and females. Monogamy disfavors high status males because they will have smaller or no harems, and women are disfavored in monogamous societies because they cannot congregate to high status males. But the net result is good for society because there will be fewer single, unmarried, and violent men. God help China, and us all, when their policy of selectively aborting females comes to fruition.

Second, according to Marx, the traditional interpretation of the Protestant Reformation is incorrect. The traditional narrative is that the populace in Western Europe was subjugated by the Roman Catholic Church, and this subjugation led to a revolt against the the Roman Church. This revolt is the Protestant Reformation, and according to the traditional narrative, it marked a increase in the rights of the common people against the establishment, and the motivation for the Reformation was a drive for personal and religious freedom.

Marxists, on the other hand, believe that this narrative is fiction, and what really happened was the establishment and the elites consolidated their power by way of the Reformation. According to Marxists, the story of the common people revolting against Rome is a fiction the establishment uses to create even more power for themselves. What really happened, is the powerful commercial class resented the trade and commercial restrictions that the Vatican imposed on them. To increase their own power and make more money, the commercial class used religious freedom as a pretext to eliminate Vatican control over their businesses enterprises. The net result was increased commercial opportunity and more wealth, under the guise of increasing religious freedom. In other words, the Protestant Reformation was nothing more than the commercial class’ first, and successful, attempt at neoliberalism and globalism. For a first class exposition of this point, please see “The Philosopher’s Toolkit” by Baggini and Fosl.

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