Does just equal common sense?
A person I know who happens to be a former client wrote telling me that a judge had lectured him in court about how angry he was at him and the fact that he was now going to give him what he deserved. As it happened, the person had just come from being the guest of a federal prison on essentially the same group of charges. This man, while in a transition house facility had allowed another resident to use his laptop. This person had downloaded child pornography on the laptop. When it was discovered he and the person who used his laptop were charged. Both of these men ran to avoid being sent to prison. The man who wrote to me was already on probation and, both by running and having child pornography on his computer he had technically violated his probation. This man in is his sixties and has a number of serious medical conditions including diabetes, heart problems, and other related issues. He used his time in Federal Prison to improve the library system, to look at his own choices, and to examine his historic relationship with fear which for years prevented him from getting the help he needed to deal with his own history of being acutely sexually abused and used by his mother beginning at a very young age. There is no doubt in my mind that this man is not currently a danger to himself, to any child or anyone else. Yet, the state in which he was living while in the transition house facility is spending a lot of money to keep him in prison for another four years. This is not an isolated case. I have worked for/with many men and women who have gone to prison because the community, via judge, prosecutor, parole or probation officer was angry at them. This cost the taxpayer a lot of money and, in most cases, does not lead to the person becoming a healthy, contributing member of the community.
Adam Foss, a prosecutor with the Suffolk County District Attorney’s office in Boston thinks the current system more often helps to create a lifetime criminal than it does to help the person make new choices. He is particularly interested in young people. In his Ted Talk he recounts the case of a young high school student, Christopher, who faced the possibilities of being charged with and convicted of multiple felonies. This young man needed money to apply and attend college as soon as he finished his senior year in high school. He made an understandable but stupid decision to steal and sell 20 laptops from Best Buy. He could have been charged with multiple felonies. Instead, Mr. Foss, who was then a young prosecutor understood that if convicted he would not only spend time in prison where he would have to learn to function in that system, but would, when released be restricted in what jobs he could pursue, what education he could pursue, what housing he could get and thus restrict his ability to become a contributing member of the community.
He says:
“Yet most prosecutors standing in my space would have arraigned Christopher. They have little appreciation for what we can do. Arraigning Christopher would give him a criminal record, making it harder for him to get a job, setting in motion a cycle that defines the failing criminal justice system today. With a criminal record and without a job, Christopher would be unable to find employment, education or stable housing. Without those protective factors in his life, Christopher would be more likely to commit further, more serious crime. The more contact Christopher had with the criminal justice system, the more likely it would be that he would return again and again and again -- all a tremendous social cost to his children, to his family and to his peers. And, ladies and gentlemen, it is a terrible public safety outcome for the rest of us.
When I came out of law school, I did the same thing as everybody else. I came out as a prosecutor expected to do justice, but I never learned what justice was in my classes -- none of us do.
…
See, I never arraigned Christopher. He never faced a judge or a jail, he never had a criminal record. Instead, I worked with Christopher; first on being accountable for his actions, and then, putting him in a position where he wouldn't re-offend. We recovered 75 percent of the computers that he sold and gave them back to Best Buy, and came up with a financial plan to repay for the computers we couldn't recover. Christopher did community service. He wrote an essay reflecting on how this case could impact his future and that of the community. He applied to college, he obtained financial aid, and he went on to graduate from a four-year school.”
…
He says that one night this past summer of 2015 he was at a community event.
“I noticed across the room, a young man waving and smiling at me and approaching me. And I recognized him, but I couldn't place from where, and before I knew it, this young man was hugging me. And thanking me. "You cared about me, and you changed my life." It was Christopher. “
This young man is now a bank manger making more money than Mr. Foss.
Mr. Foss is very clear that the one issue which was not discussed at law school was the meaning of the term justice. What is just?
What this example points to is the fact that we, the community, could benefit ourselves and all those we are now incarcerating and labeling for life, by re-examining what we mean by the term crime and the term justice.
In a previous blog I have discussed the fact that, despite some serious thought and study, I have yet to arrive at a satisfactory (to me) definition of justice. Certainly I know what the dictionary says. I also know what passes for justice in the U. S. judicial system and I know how we, as a country seems to view justice. I also have some difficulty with the frequent use of the terms crime and criminal.
When I look up the definition of the word crime, I find terms such as illegal, immoral, or mistake. When Mr. Foss was beginning his Ted Talk he asked members of the audience if any of them had ever shoplifted or gotten into a fight as a child (even with a sibling). Of course lots of hands went up. Yet, few in that audience had a criminal record. Everyone in the audience would have had to admit to doing something which was hurtful to another person and something which was potentially life threatening. We have all not been paying close attention at times when driving and “almost” hit someone or treated someone with enormous disrespect or been deliberately hurtful. We have all failed at times to speak out about the action of someone representing this country or turned the other way when we did not want to get involved. We have driven when our blood alcohol level would have tested above the legal limit or used (one time only of course) an illegal drug, or used someone sexually while professing the opposite just because we were horny. In short, we have committed acts which were illegal, immoral or a “mistake.”
We have in this country imprinted countless individuals with the label of sexual offender just because we were angry at them and not because they are dangerous sexual predators. I have previously mentioned that I have had clients labeled as sexual offenders because they had sex with underage prostitutes who lied about their age or clients who were a few months past the legal limit of having sex with a certain-age teenager. We do not arrest and prosecute every adult who dates and later marries or does not marry a 15-year-old. Sometimes we do and sometimes we look the other way or give someone a “good talking to.”
Countless individuals to whom I have talked have had a private business and, when people paid cash, have failed to report every penny of their income. That is clearly illegal. Should we be more vigilant in insuring that these people are sent to prison even if the amount on which they failed to pay taxes is much less than it would cost to prosecute and incarcerate them for a year or more?
How Mr. Foss handled the case of Christopher has very positive results. Best Buy got most of their money back. The cost to the judicial system was minimal. In fact, if we add in community service the community might have immediately gained more than it spent. In the long run he is a productive, tax paying, self-supporting member of the community. Who wins? What is just? Suppose that the approach Mr. Foss took with Christopher only works in 10% or 20% of cases. Is this worth it? What percentage of people spending time in prison come out and reoffend? Statistics vary. In some studies, it is between 18% and 59 %. In some studies, the lowest rate of reoffending – 18% - is with those who have spent more than 10 years in prison. Is this because those who spend more than 10 years in prison are broken, better at not getting caught or because they become long-term, tax paying, contributing members of society? This information is not as readily available.
No matter what the outcome, how are we, as a community, going to define just?
It seems that nearly everyone agrees that we are spending far too much money on convicting and incarcerating individuals in the United States with too few positive results. Yet, many of those same individuals would say that we have the most just judicial system in the world. Yet, it seems not to work well. In fact, it seems to work less well than systems in countries which incarcerate fewer people.
The first question Mr. Foss as a young attorney asked himself was whether some actions made sense – common sense? Did it make sense to label people such as Christopher as convicted felons who should permanently be denied access to many jobs, housing or other educational opportunities?
I have no idea what is just. I do know that technically most of us have broken laws. Many of the laws we have broken are not felonies but many, if not all of us, are capable of committing a felony.
The point is that the labels, although we employ them often, are not very helpful. I am not convinced that we will ever agree on what is just. We may agree on what is technically a crime although we might disagree on who is a criminal. I do know that our current system of punishment is often because we are angry at people and not because we think that the person, such as Christopher, are destined to be career felons. It is expensive financially, emotionally and spiritually to everyone in the community.
Mr. Foss is recommending and I am seconding him that we apply the rule of common sense in our judicial system. Does our purpose, our action make long term sense? Who potentially benefits? Is the only benefit for the emotional benefit of the members of the judicial system who are angry?
Do we really want a system based on the emotions of those in charge?
What is just? Who do we want to label as criminal?
Written March 22, 2016
A person I know who happens to be a former client wrote telling me that a judge had lectured him in court about how angry he was at him and the fact that he was now going to give him what he deserved. As it happened, the person had just come from being the guest of a federal prison on essentially the same group of charges. This man, while in a transition house facility had allowed another resident to use his laptop. This person had downloaded child pornography on the laptop. When it was discovered he and the person who used his laptop were charged. Both of these men ran to avoid being sent to prison. The man who wrote to me was already on probation and, both by running and having child pornography on his computer he had technically violated his probation. This man in is his sixties and has a number of serious medical conditions including diabetes, heart problems, and other related issues. He used his time in Federal Prison to improve the library system, to look at his own choices, and to examine his historic relationship with fear which for years prevented him from getting the help he needed to deal with his own history of being acutely sexually abused and used by his mother beginning at a very young age. There is no doubt in my mind that this man is not currently a danger to himself, to any child or anyone else. Yet, the state in which he was living while in the transition house facility is spending a lot of money to keep him in prison for another four years. This is not an isolated case. I have worked for/with many men and women who have gone to prison because the community, via judge, prosecutor, parole or probation officer was angry at them. This cost the taxpayer a lot of money and, in most cases, does not lead to the person becoming a healthy, contributing member of the community.
Adam Foss, a prosecutor with the Suffolk County District Attorney’s office in Boston thinks the current system more often helps to create a lifetime criminal than it does to help the person make new choices. He is particularly interested in young people. In his Ted Talk he recounts the case of a young high school student, Christopher, who faced the possibilities of being charged with and convicted of multiple felonies. This young man needed money to apply and attend college as soon as he finished his senior year in high school. He made an understandable but stupid decision to steal and sell 20 laptops from Best Buy. He could have been charged with multiple felonies. Instead, Mr. Foss, who was then a young prosecutor understood that if convicted he would not only spend time in prison where he would have to learn to function in that system, but would, when released be restricted in what jobs he could pursue, what education he could pursue, what housing he could get and thus restrict his ability to become a contributing member of the community.
He says:
“Yet most prosecutors standing in my space would have arraigned Christopher. They have little appreciation for what we can do. Arraigning Christopher would give him a criminal record, making it harder for him to get a job, setting in motion a cycle that defines the failing criminal justice system today. With a criminal record and without a job, Christopher would be unable to find employment, education or stable housing. Without those protective factors in his life, Christopher would be more likely to commit further, more serious crime. The more contact Christopher had with the criminal justice system, the more likely it would be that he would return again and again and again -- all a tremendous social cost to his children, to his family and to his peers. And, ladies and gentlemen, it is a terrible public safety outcome for the rest of us.
When I came out of law school, I did the same thing as everybody else. I came out as a prosecutor expected to do justice, but I never learned what justice was in my classes -- none of us do.
…
See, I never arraigned Christopher. He never faced a judge or a jail, he never had a criminal record. Instead, I worked with Christopher; first on being accountable for his actions, and then, putting him in a position where he wouldn't re-offend. We recovered 75 percent of the computers that he sold and gave them back to Best Buy, and came up with a financial plan to repay for the computers we couldn't recover. Christopher did community service. He wrote an essay reflecting on how this case could impact his future and that of the community. He applied to college, he obtained financial aid, and he went on to graduate from a four-year school.”
…
He says that one night this past summer of 2015 he was at a community event.
“I noticed across the room, a young man waving and smiling at me and approaching me. And I recognized him, but I couldn't place from where, and before I knew it, this young man was hugging me. And thanking me. "You cared about me, and you changed my life." It was Christopher. “
This young man is now a bank manger making more money than Mr. Foss.
Mr. Foss is very clear that the one issue which was not discussed at law school was the meaning of the term justice. What is just?
What this example points to is the fact that we, the community, could benefit ourselves and all those we are now incarcerating and labeling for life, by re-examining what we mean by the term crime and the term justice.
In a previous blog I have discussed the fact that, despite some serious thought and study, I have yet to arrive at a satisfactory (to me) definition of justice. Certainly I know what the dictionary says. I also know what passes for justice in the U. S. judicial system and I know how we, as a country seems to view justice. I also have some difficulty with the frequent use of the terms crime and criminal.
When I look up the definition of the word crime, I find terms such as illegal, immoral, or mistake. When Mr. Foss was beginning his Ted Talk he asked members of the audience if any of them had ever shoplifted or gotten into a fight as a child (even with a sibling). Of course lots of hands went up. Yet, few in that audience had a criminal record. Everyone in the audience would have had to admit to doing something which was hurtful to another person and something which was potentially life threatening. We have all not been paying close attention at times when driving and “almost” hit someone or treated someone with enormous disrespect or been deliberately hurtful. We have all failed at times to speak out about the action of someone representing this country or turned the other way when we did not want to get involved. We have driven when our blood alcohol level would have tested above the legal limit or used (one time only of course) an illegal drug, or used someone sexually while professing the opposite just because we were horny. In short, we have committed acts which were illegal, immoral or a “mistake.”
We have in this country imprinted countless individuals with the label of sexual offender just because we were angry at them and not because they are dangerous sexual predators. I have previously mentioned that I have had clients labeled as sexual offenders because they had sex with underage prostitutes who lied about their age or clients who were a few months past the legal limit of having sex with a certain-age teenager. We do not arrest and prosecute every adult who dates and later marries or does not marry a 15-year-old. Sometimes we do and sometimes we look the other way or give someone a “good talking to.”
Countless individuals to whom I have talked have had a private business and, when people paid cash, have failed to report every penny of their income. That is clearly illegal. Should we be more vigilant in insuring that these people are sent to prison even if the amount on which they failed to pay taxes is much less than it would cost to prosecute and incarcerate them for a year or more?
How Mr. Foss handled the case of Christopher has very positive results. Best Buy got most of their money back. The cost to the judicial system was minimal. In fact, if we add in community service the community might have immediately gained more than it spent. In the long run he is a productive, tax paying, self-supporting member of the community. Who wins? What is just? Suppose that the approach Mr. Foss took with Christopher only works in 10% or 20% of cases. Is this worth it? What percentage of people spending time in prison come out and reoffend? Statistics vary. In some studies, it is between 18% and 59 %. In some studies, the lowest rate of reoffending – 18% - is with those who have spent more than 10 years in prison. Is this because those who spend more than 10 years in prison are broken, better at not getting caught or because they become long-term, tax paying, contributing members of society? This information is not as readily available.
No matter what the outcome, how are we, as a community, going to define just?
It seems that nearly everyone agrees that we are spending far too much money on convicting and incarcerating individuals in the United States with too few positive results. Yet, many of those same individuals would say that we have the most just judicial system in the world. Yet, it seems not to work well. In fact, it seems to work less well than systems in countries which incarcerate fewer people.
The first question Mr. Foss as a young attorney asked himself was whether some actions made sense – common sense? Did it make sense to label people such as Christopher as convicted felons who should permanently be denied access to many jobs, housing or other educational opportunities?
I have no idea what is just. I do know that technically most of us have broken laws. Many of the laws we have broken are not felonies but many, if not all of us, are capable of committing a felony.
The point is that the labels, although we employ them often, are not very helpful. I am not convinced that we will ever agree on what is just. We may agree on what is technically a crime although we might disagree on who is a criminal. I do know that our current system of punishment is often because we are angry at people and not because we think that the person, such as Christopher, are destined to be career felons. It is expensive financially, emotionally and spiritually to everyone in the community.
Mr. Foss is recommending and I am seconding him that we apply the rule of common sense in our judicial system. Does our purpose, our action make long term sense? Who potentially benefits? Is the only benefit for the emotional benefit of the members of the judicial system who are angry?
Do we really want a system based on the emotions of those in charge?
What is just? Who do we want to label as criminal?
Written March 22, 2016
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