Law & Justice: March 2008 Archives
Several years ago I wrote a short series of posts about our society's despicable tolerance of prison rape, and this editorial by Ezra Klein presents a good opportunity to raise the matter again: "There's nothing funny about prison rape".
These hearings are held annually. This year's transcripts aren't online yet, but in 2006 you could have heard a man named Clinton explain, "I had no choice but to enter into a relationship with another inmate in my dorm in order to keep the rest of them off of me. In exchange for his protection from other inmates, I had to be with him sexually any time he demanded it. It was so humiliating, and I often cried silently at night in my bed ... but dealing with one is better than having 10 or more men demanding sex from you at any given time."Clinton's testimony wasn't very funny, and it wasn't for entertainment. Nor was the 2001 report by Human Rights Watch, "No Escape," which included a letter from an inmate confessing that "I have no more feelings physically. I have been raped by up to five black men and two white men at a time. I've had knifes at my head and throat. I had fought and been beat so hard that I didn't ever think I'd see straight again."
Prison rape occupies a fairly odd space in our culture. It is, all at once, a cherished source of humor, a tacitly accepted form of punishment and a broadly understood human rights abuse. We pass legislation called the Prison Rape Elimination Act at the same time that we produce films meant to explore the funny side of inmate sexual brutality.
If we as a culture really want to subject our criminals to this sort of torture then let's do it explicitly, not with a wink and a nudge. I'm abstractly in favor of corporal punishment, but this sort of sexual abuse is clearly beyond the pale and should be loudly condemned and quickly eliminated.
NPR has an interesting take on why burglaries have been declining for decades:
"I was a salesman. I could sell anything," Mathis says, as he waits to see his probation officer at a city building in Washington, D.C. "Go get me some toilet paper, and I could sell it."For almost 20 years, Mathis burglarized homes to support a drug habit. He only got caught a few times. Mathis says he stopped breaking into homes because there's just no money in it anymore.
"If you're going to do a burglary, you need to have some buyers," Mathis says. "Everybody has everything now."
Mathis says there's just too much on the street already. Everyone he knows already has a digital camera, iPod knockoffs and pirated DVDs shipped in from China.
"And if it's not new, a lot of people don't even want to fool with it," Mathis says.
Forget about last year's video games and old laptops, Mathis says. And don't even bring a VCR or boxy TV to the street.
"You can get a TV for nothing almost," he says. "People are giving them away now."
How's this for a definition of what it means to be a "wealthy" nation: legal commerce puts the black market out of business.
Perhaps most interesting is that private enterprise isn't just attacking burglaries from beneath, but also from above.
The program and the street economy may have turned Mathis' life around, but criminologists say there are other reasons behind the 30-year drop in burglaries — such as the 1 million private police and security guards at work in residential communities.Two years ago, Steve Southworth, a private police investigator for the Wintergreen Resort in central Virginia, spent six months tracking the movements of a burglar who traveled along the Appalachian trail. ...
In the past, remote communities like this one were ripe for thieves. But since residents started paying for their own private officers, crime has dropped 70 percent.
Maybe a wealthy free market can provide solutions to problems that even many libertarians often believe require government intervention?
Of course, the flip side is that gadget robberies are up.
(HT: Marginal Revolution.)
The title above is controversial in many ways. Defense attorneys didn't step forward to exonerate an innocent man sentenced to live in prison for the crime they knew their client committed. Outrageous on the face, but the issue is more complex than it may appear at first glance. (I'll try to excerpt the important points, but you may want to read the whole thing.)
Alton Logan was convicted of killing a security guard at a McDonald's in Chicago in 1982. Police arrested him after a tip and got three eyewitnesses to identify him. Logan, his mother and brother all testified he was at home asleep when the murder occurred. But a jury found him guilty of first degree murder. ...Logan, who maintains he didn't commit the murder, thought they were "crazy" when he was arrested for the crime.
Attorneys Dale Coventry and Jamie Kunz knew Logan had good reason to think that, because they knew he was innocent. And they knew that because their client, Andrew Wilson, who they were defending for killing two policemen, confessed to them that he had also killed the security guard at McDonald's - the crime Logan was charged with committing. ...
The problem was the killer was their client. So, legally, they had to keep his secret even though an innocent man was about to be tried for murder.
"I know a lot of people who would say, 'Hey if the guy's innocent you've got to say so. You can't let him rot because of that,'" Simon remarked.
"Well, the vast majority of the public apparently believes that, but if you check with attorneys or ethics committees or you know anybody who knows the rules of conduct for attorneys, it’s very, very clear-it's not morally clear-but we're in a position to where we have to maintain client confidentiality, just as a priest would or a doctor would. It's just a requirement of the law. The system wouldn't work without it," Coventry explained.
Even if Coventry and Simon had been willing to betray their client, their testimony would not have been admissible in court. The attorney-client privilege belongs to the client, and even if the attorneys published a book their information could never be considered at trial. Coventry and Simon could probably have found some way to exonerate Logan, but they took their duty to their own client very seriously.
Were they right to? Is a system that requires these kinds of decisions really interested in "justice"? In the end, I think so. Commenter Malvolio at The Volokh Conspiracy has the most significant point in my opinion:
If you pay attention, you'll notice that attorney-client confidentiality didn't make the unfortunate Mr Logan any worse off. If no confidentiality existed, Wilson would simply not have confessed to his lawyers. Wilson would have gotten a worse defense, but Logan would not have gotten a better one.
If attorneys were allowed to break privilege (or did anyway) when the stakes were "high enough", then their clients simply wouldn't share their secrets. The clients would lose the benefits of expert legal advice, and the "victims" of the secrets would still suffer.
Additionally, in a world without attorney-client privilege it's non-lawyers who would suffer the most. Lawyers who go on trial would be able to represent themselves and hold all their secrets in their minds, but non-lawyers would be forced to rely on another person who could not be trusted to the degree one trusts oneself.
As difficult as the situation is to reconcile with simple morality, I believe it is true that the legal system as a whole is more fair and ethical than it would otherwise be precisely because some of its participants are allowed/required to behave in a way that would be considered immoral in another context.
