Antonin Scalia

Cruel, Unusual, and Crowded

Will Brown v. Plata bring mass incarceration to an end?

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Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America, by Jonathan Simon, New Press, 224 pages, $26.95

Imagine a society where convicts were sentenced to death by untreated renal failure or denial of chemotherapy. Modern Americans would surely consider such a place barbaric and cruel. Yet in the 1990s and 2000s, California essentially meted out such punishments, knowingly shoveling unprecedented numbers of convicts into overcrowded, underequipped prisons to serve long, hopeless sentences.

In 2006, "a preventable or possibly preventable death occurred" somewhere in California's prison system "once every five to six days," the U.S. Supreme Court observed in the 2011 case of Brown v. Plata. It's hard to find medical staff even for functional prisons; vacancies in the California system ranged from 20 percent for doctors to 44 percent for X-ray technicians. But an excess of inmates, more than a lack of doctors, caused the state's prison health care crisis. Built to house roughly 80,000 people, California's prisons were stuffed with twice that many residents, prompting Gov. Arnold Schwarzenegger to declare a state of emergency. With every cell full, prison officials had packed gymnasiums with double and triple bunks. In one such makeshift dormitory, a prisoner was beaten to death. No one on the prison staff noticed for several hours.

California conceded that such conditions violated the Eighth Amendment, but the state fought long and hard with prisoners' rights lawyers over how to remedy the violations. In Plata, the Supreme Court affirmed a lower federal court order requiring California to reduce prison overcrowding to 137.5 percent of capacity over the next two years. (In subsequent litigation, the deadline was extended to 2016.) At the time, the required reduction amounted to about 40,000 prisoners, assuming no increase in capacity-which, given the state's fiscal situation, was a realistic assumption.

The order didn't literally require the authorities to award 40,000 inmates a surprise trip home. California was free to decide how to thin its prison rolls: It could transfer state prisoners to local jails, stop sending parolees to prison for minor violations (an anomalous California practice that had been a major contributor to overcrowding), adjust its sentencing laws prospectively, or use some mix of approaches. Still, because the order set a limit on a prison population, it qualified as a "prisoner release order" under the Prison Litigation Reform Act of 1995, which permits courts to issue such orders only as a last resort. Over 10 days of hearings before the Plata trial court, past and present prison wardens from around the country had testified that California's prisons could safely be downsized. Doyle Wayne Scott, a former head of the Texas prison system, pronounced California's prisons "appalling," "inhumane," and "unacceptable," stating that he had "never seen anything like it" in his 35-year career.

Many analysts have described the Supreme Court's decision using outdated tropes from the Warren Court era, portraying the judges as activists either nobly or naively interfering with law enforcement. Such interpretations are too simplistic, as Berkeley law professor Jonathan Simon makes clear in Mass Incarceration on Trial, a book that chronicles the decades of complex litigation that culminated in Plata. The Supreme Court usually defers to states on issues of punishment. (Even on its so-called liberal wing, the current court contains no public opponent of the death penalty.) And the Prison Litigation Reform Act limits judges from intervening in prison administration even if they want to. That a relatively conservative and congressionally handcuffed Court was moved to uphold the Plata release order says less about the justices than it does about how egregious the California prisons had become by 2011.

"California is to incarceration," Simon writes, "what Mississippi was to segregation-the state that most exemplifies the social and legal deformities of the practice." True, California's per capita rate of incarceration is average compared to other states. But that fact reflects a historic transformation from California's position, until the late 1970s, as one of the least punitive states. Every state got "tough on crime" in the 1980s and '90s, but no state swung from one policy extreme to the other quite like California, which famously enacted the nation's most draconian Three Strikes Law, among other reforms. As Simon notes, California's incarceration rate demonstrated the highest increase in the nation, growing "a staggering 500 percent between 1977 and 1998." Moreover, an average incarceration rate for the United States-for that matter, a low incarceration rate for the United States-remains extremely high by world standards.

By the time Plata reached the Supreme Court, one of the underlying lawsuits had been ongoing since 1991. At oral argument, some of the justices expressed palpable frustration. "How much longer do we have to wait?" asked Ginsburg. "Another 20 years?" Breyer referred to photographs submitted to the court as "horrendous" and observed: "You cannot have mental health facilities that will stop people from killing themselves and you cannot have medical facilities that will stop staph and tubercular infection in conditions like this." In a rare step, the Court published three of those photographs as an appendix to its opinion. Two of the appended pictures show gymnasiums filled with beds, prisoners standing around in the narrow corridors between them. The third picture shows two cages the size of telephone booths. California locked suicidal prisoners inside such cages when there were no available beds in mental health facilities. Kennedy's opinion referenced a prisoner who was "held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic."

Those photographs, and the underlying facts, didn't directly implicate the prisons of any other state. Still, Simon rejects the notion that Plata was a one-off, "a remarkable but unique judicial intervention-the Bush v. Gore of prison jurisprudence." Instead, precisely because of California's outsized place in the annals of recent prison history, Simon reads Plata expansively, as "the legal basis for nationwide dismantling of mass incarceration." Simon agrees with everyone involved in Plata that California's prisons amounted by 2011 to a systematic Eighth Amendment violation. But he goes one step further: The California example proves, he argues, that imprisoning massive numbers of people fundamentally cannot comport with the Eighth Amendment. Beyond the logistical difficulties inherent in coordinating basic care for tens of thousands of prisoners, the logic of indiscriminate incapacitation that underlies mass incarceration militates against recognizing prisoners as individuals with ailments and frailties.

That incompatibility began to be enshrined in the architecture of California's prisons in the 1980s. To accommodate the possibility of overcrowding (although not on the level that would actually occur), these prisons were equipped with water and sewage infrastructure for 190 percent of housing capacity. They did not get equivalent leeway for medical facilities, and so, as the Supreme Court observed, prison medical staff had to "operate out of converted storage rooms, closets, bathrooms, shower rooms, and visiting centers." The Pelican Bay supermax-ostensibly designed to hold prisoners with severe behavioral problems-operated for its first two years without a full-time psychiatrist. In many California prisons, the system of medical record-keeping amounted to piles of documents strewn around spare rooms with no apparent organizational structure.

For Simon, these design and management flaws do not reflect bureaucratic oversights but a deeper cultural pathology: the tendency to imagine prisoners as an undifferentiated mass of uncontrollable criminality, not as human beings with organs that fail and extremities that break.

In addition to providing a legal account of Plata, Simon advances a historical narrative of the etiology of mass incarceration. Between 1970 and 2008, the ratio of Americans in prison ballooned to unprecedented heights, from-according to sociologists Bruce Western and Becky Pettit-around 100 per 100,000 people to around 762 per 100,000. The mechanisms of prison growth varied by state, but they included, in different combinations, local prosecutors charging more aggressively, state lawmakers stiffening criminal codes, parole boards denying release in cases where it previously would have been routine, federal grants encouraging punitive policies, and other factors. Feeding all these proximate causes, Simon argues, was a common factor: the fears of the 1970s, when day-to-day disorder blended in the public mind with sensationalized media coverage of prison riots and of outliers like the Manson family. In the new conventional wisdom, criminals represented a distinct and internally homogeneous class of determined predators; the only way to contain their threat was to imprison them all for as long as possible.

For Simon, Plata's significance rests in its potential to puncture that conventional wisdom by reframing the public image of the typical criminal. Against decades of political discussions that imagined every petty thief and drug addict as a latent serial killer, Kennedy's opinion models "a different way of seeing prisons and prisoners," Simon writes. As an index of the sea change that Plata represents, Simon emphasizes Kennedy's peroration on dignity. "Prisoners retain the essence of human dignity inherent in all persons," Kennedy wrote. "A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society."

The word dignity appears frequently in Supreme Court opinions, and Justice Kennedy, known for his high-flying prose, is especially fond of it. (His 2012 opinion overturning the Defense of Marriage Act used the word 11 times.) The term is also ubiquitous in American politics. In their 2012 platforms, the Democrats lauded "the value of treating all Americans with dignity and respect" while the Republicans insisted to the contrary that "all Americans should be treated with respect and dignity." The bioethicist Ruth Macklin once proclaimed dignity "a useless concept": Appeals to dignity, she argued, are inevitably "vague restatements of other, more precise notions or mere slogans." You needn't go that far to wonder whether dignity alone is a strong enough shield for the politically vulnerable. It's not hard to imagine a politician or judge playing the "human dignity" of prisoners against the "human dignity" of taxpayers or crime victims.

Though less inspiring than dignity, the number 137.5 might well prove Plata's more important string of characters. That's the admittedly arbitrary figure the court affirmed as the maximum percentage of capacity to which California's prisons could be crowded. At trial, several expert witnesses had suggested 130 percent, the cap recommended internally at the Federal Bureau of Prisons. A state review board, however, had identified 145 percent as the California prisons' maximum "operable capacity," although that calculation did not specifically account for medical needs. The trial court averaged the two, apparently preferring the lower figure but bumping it up slightly in deference to the Prison Litigation Reform Act's spirit of judicial restraint. In a recent article on post-Plata developments in California, where the state prison population has fallen almost 25 percent since 2007, criminologists Joan Petersilia and Francis Cullen wrote that, if other states want to follow California's example of prison downsizing, they should voluntarily set a similar "hard limit in capacity." Otherwise, "it is foolish to expect that creating alternatives to incarceration will siphon off large numbers of offenders from prisons." In practice, probation and treatment programs have often been tools for netting new groups of people under new forms of court control without concomitantly reducing the numbers sent to prison.

Is this a turning point for criminal justice reform, as journalists have insisted so often that it is becoming a cliché? Historic declines in crime have weakened the appeal of law-and-order demagoguery; DNA exonerations have undermined faith in the criminal courts; episodes like the standoff in Ferguson, Missouri, have laid bare the racism that pervades the criminal justice system; and the recession has made lawmakers newly skeptical of once-sacred fiscal cows. Politicians ranging from the libertarian-leaning Sen. Rand Paul (R-Ky.) to the center-left Sen. Cory Booker (D-N.J.) have spoken eloquently about the hardships faced by men and women who get out of prison only to find jobs and apartments closed off to them. And in 2009, for the first time in almost 40 years, the American prison population declined.

But that much-vaunted decline was largely an artifact of California's efforts to mitigate its overcrowding crisis. Other states have registered smaller reductions, if any, in recent years-and last year, for the first time since 2009, prison populations again grew both in California and in the United States as a whole. The 2013 uptick was small, and the totals remain below their pre-Plata heights. Still, the most recent data suggest that prison growth has leveled off more than it has reversed course.

Moreover, lower prison rolls do not necessarily mean fewer people under penal control. In response to Plata, California transferred responsibility for punishing almost all parole violations and drug and property crimes to the counties. In theory, counties were encouraged to experiment with alternatives to incarceration and treatment programs. In practice, they're filling the local jails. Already, advocates have filed lawsuits alleging crowding and inadequate medical care in county facilities-suggesting that the horrors Plata was supposed to end might merely have been relocated. There is also the danger that poorly implemented reforms could generate new problems. In the 1960s and '70s, when states shuttered abusive psychiatric asylums, many people who in the past would have been incarcerated ended up homeless instead.

Nevertheless, Simon is right to identify Plata as a harbinger of significant change in the politics of punishment. Justice Kennedy's opinion named every California prisoner as a "potential victim" of unconstitutional treatment; he lamented that "many more will die or needlessly suffer" without an end to chronic overcrowding. After decades of zero-sum political formulas pitting criminals against victims, the nation's highest court was now allowing that these categories are not mutually exclusive.

Even the prison guards' union seemed to agree. In a 2007 appearance, the president of the California Correctional Peace Officers Association (CCPOA) lambasted "the prison-industrial complex," unwittingly invoking a term popularized by prison abolitionists. The next year, he hired a parolee to work at the union's headquarters and, when members complained, responded with an email reminder that prisoners "are the brothers and sisters, the nephews and nieces, the children and grandchildren of people from all walks of life." In The Toughest Beat, his definitive history of the union, sociologist Joshua Page concludes that these overtures represented a cosmetic attempt to deflect growing criticism, not a genuine change in the organization's philosophy. Even so, the fact that the CCPOA must now play defense signals a dramatic shift in the political climate since the 1990s.

Failing to register that shift, Alito and Scalia wrote dissents in Plata that read like missives from an earlier era, soaked in superpredator bromides. Alito accused the majority of "gambling with the safety of the people of California"-an accusation that almost exactly mirrored a statement made in 2010 by Harriet Salarno, who told a reporter that a cost-saving proposal to parole a few dozen terminally ill or paralyzed prisoners amounted to "playing games with public safety." Salarno chairs Crime Victims United of California, a CCPOA-funded group that has consistently advocated punitive policies. Scalia, for his part, wisecracked that "many" of the prisoners aided by Plata "will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym." As shown in the photographs appended to the majority opinion, California's prison gymnasiums were unavailable for "pumping iron."

Those who live or work inside prisons are also people, and California gambled with their safety for decades. The state never contested this point before the Supreme Court. "Nobody doubts for a moment," California's lawyer told the justices at oral argument, "that there have been very significant violations of constitutional rights" in California's prisons for "years gone by." The disputed issues in Plata pertained solely to what caused the violations and how to fix them. In backhanded defense of his client, California's lawyer explained that, in his view, the primary cause wasn't overcrowding but "the culture of disregard for the inmate."

Mass Incarceration on Trial is both a useful guide to Plata and an effective polemic against the United States' excessive reliance on prisons. Considering its dark subject matter, it is also remarkably optimistic. Reading the book, I sometimes wondered if Simon was trying to convince himself as much as his readers that Plata represents the beginning of the end of mass incarceration.

In other writings, Simon has emphasized that ending the War on Drugs and decriminalizing low-level offenses, while laudable steps, may not be enough to dismantle America's massive carceral regime. To do that, Simon has written, we will also have to confront the United States' "extraordinarily harsh prison sentences" for violent crime. Whether murderers should be paroled after 20 years is a much thornier political conversation than whether potheads should be branded as felons, and Plata did not directly broach either topic. But Simon seems to hope it has edged America closer to those necessary conversations than has any other Supreme Court case in recent decades.

Sara Mayeux (smayeux@law.upenn.edu) is a Sharswood fellow at the University of Pennsylvania Law School.

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  1. But it’s still better than being set free into the cruel, cruel world with no social services to take care of you!!

    /ESB

    1. I came here to say ^^THIS.

      Thank you, Bean.

  2. Vile Treasury secretary Jack Lew says that we’re going to hit the debt ceiling again in nine days.

    Already, so soon? You would have thought that the deficit was down to zero from listening to Obama’s JournoList lickspittles.

    1. How could “Obama’s JournoList lickspittles” be so wrong?

    2. debt != deficit

      1. But the deficits are the reason why the debt ceiling is being raised again, for what seems like the millionth time in the last few years.

    3. There is a deficit of debt, thus…. HEY, look over there at the racists !!!!

      1. Well… debt is caused by racism and privilege.

        1. It’s OK though, so is credit.

  3. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link,
    go to tech tab for work detail

    ?~?~?~?~?~~~~~~~ http://www.jobsfish.com

    1. Why don’t we have all the do nothing bureaucrats do this while on the clock and turn $77/hr over to the treasury? Boom! No more debt.

  4. What we should remember is that we used to have across-the-board soft-on-crime policies in the ’60’s and ’70’s, with soft-on-crime being applied to people convicted of violent crimes. Why, when the Massachusetts Legislature passed a bill to deny furlough to prisoners convicted of first-degree murder, the governor vetoed the bill, saying that it would “cut the heart out of efforts at inmate rehabilitation”.

    While the most of rank-and-file is justifiably appalled by prison condition while at the same time believe that long-term imprisonment is appropriate for those who commit violent crimes, the leadership of the campaign is opposed to punishment of crime per se. And this is why we must oppose them.

    1. If there’s to be punishment, is incarcer’n an efficient means of producing it?

      What is long-term imprisonment supposed to achieve that couldn’t be better achieved in other ways?

      1. Exactly that Robert. There are some people who are an ongoing threat to those around them such that incarceration is the only viable alternative. Those people, however, are at best a third of the prison population. The rest of the population is there because we can’t let crime go unpunished and this is the only means available really.

        Prison as we know it is a 18th Century invention designed by religious fanatics to save souls. It is not the only answer available and generally a pretty lousy one in most cases.

        1. Heh heh, calling Quakers fanatics is going to blow some minds.

          1. Read about the history of the Eastern State Penitentiary sometime. I don’t see how you could call the people who developed that place anything but fanatics.

        2. If you’re sure those people are “an ongoing threat to those around them”, “ongoing” meaning that’s they way they are, not a product of some temporary condition, why should they be allowed to live? Why should the people around them have to pay for restraining them, when they’re the ones causing the problem?

          1. Because we don’t know that they will never change. Most of them do when they get much older. But that is often 30 or more years away.

            1. Also because sometimes it comes out that a person was wrongly convicted. In the event of such a wrongful conviction, someone can at least one day be released. If you just kill them and then find out they didn’t commit the crime, there’s nothing that can be done.

              1. If they were imprisoned for any length of time, and later you found out they’d been wrongly convicted, there’s nothing you can do about that either. The most you could do is if they’re still imprisoned you could let them out then. The only difference is in one case you’re doing something to them stretched over time, in the other case you’re doing it at a given time. I don’t think stretching it out is an advantage on balance.

                1. I bet this guy is finding still being alive an advantage on balance.

                2. There should be significant remuneration to victims of wrongful convictions. Its not ideal, but its much better than “nothing”, which you claim is all that can offered such people.

            2. I would say that if you’re not sure they aren’t going to change in some reasonable length of time, then you have no business locking them up for a longer time than the minimum time you’re sure they’ll be a threat.

              I guess you could consider imprisonment on the same basis as confinement in mental institutions, i.e. ongoing evaluation until they show no sign of being an acute danger. No sentence, just “until whenever”. But then you’ve got to take seriously that when they cool off, which could be in just a day or 2, you have to let them go.

              You also have to foresee that there will be cases of people who premeditate a very serious crime such as murder for reasons that are extremely unlikely to be replicated, in which case if they’re successful in their attempt, you have no business restraining them, because they already got it out of their system. The crime rehabilitated them. A revenge killing, for instance. They were never murderers before, never will be again, so what business do you have confining them or disabling them in any way?

              1. The way murder is punished is interesting. It clearly, as you illustrate, is not about rehabilitation or even about protecting society in many cases. People tend to see a premediatated murder as a worse crime than a crime of passion. And morally speaking, perhaps it is. But I’m a lot more concerned about the guy who flies off the handle and kills someone in a fit of rage than the guy who carefully plans to kill someone who wronged him.
                As you say, people need to figure out what the purpose of prisons is. Are we protecting society or handing out retribution?

    2. Many of us would be satisfied by removing non-violent prisoners from the populations.

    3. the leadership of the campaign is opposed to punishment of crime per se

      Do you have any evidence for this assertion, baring that which comes ex culo?

      1. ooooooo…… fancy Latin words

        oh wait

      2. I do think there’s a portion of the left that is opposed to punishment of crime period – unless it’s rape in which case people who are accused should be punished even if innocent.

        For example, if we totally ended the War on Drugs, the prisons would still disproportionately be filled with African Americans because African Americans on average commit more violent crimes. I guarantee you that progressives would say this ‘inequity’ was evil and start trying to lessen the punishment even for extremely violent crimes in an attempt to make things more ‘equal.’

        They legitimately don’t care about the damage done by their beliefs provided things are made nebulously equal. Everyone can be made worse off, but provided that they’re equivalently miserable, the left sees this as entirely okay.

        1. That is true, but as Reason has highlighted before, the Left, in general, is noticeably absent from the prison reform movement, of which Ejercito claims is really about the end of “punishment of crime”.

          1. All the left cares about is pushing leftist politics. They don’t care about anything else. It is all just a means to an end to them.

            http://pjmedia.com/tatler/2015…..with-them/

            That is a great example. The left was pushing to end human trafficking and getting nowhere. Then along comes the evangelicals who take up the cause and make it a huge deal and get a lot done. The left, however, is now all butt hurt about it because the evangelicals actually did something to help with human trafficking and nothing to further leftist politics.

            1. Sort of like Elizabeth Stoker Bruenig whining about right-wing prison reform movements because they don’t agree with her on issues related to welfare spending.

              1. That is right. And she thinks that because she doesn’t give a shit about prison reform. She only cares about prison reform in so far as it is a tool to push leftist politics. If it isn’t that, she doesn’t give a shit and the people in prison can rot there.

                1. As I wrote in that thread (probably too late for anybody to read it, as is common w me), that’s a fault I see in too many activists of any kind, libertarian ones as much as any, which is that they’re not so much interested in the right thing being done, or even in being right themselves, as in everyone else’s being wrong.

              2. Elizabeth Stoker Bruenig has to be the most incompetent Opus Dei sleeper agent in existence.

                1. But she’s so cute! Amazing to see such evil in such an adorable package.

                  1. In 2006, “a preventable or possibly preventable death occurred” somewhere in California’s prison system “once every five to six days,” the U.S. Supreme Court observed in the 2011 case of Brown v. Plata. It’s hard to find medical staff even for functional prisons; vacancies in the California system ranged from 20 percent for doctors to 44 percent for X-ray technicians.

                    BUT IT’S FREE!

                    It’s so perfect that this was published her a day after the article about ESB. This is the ‘free’ health care she was saying people get in jail.

                    1. ” “a preventable or possibly preventable death occurred” somewhere in California’s prison system “once every five to six days,”‘

                      So it’s better than most of the “free” healthcare systems in Europe?

                    2. I think there are rather more people in Europe than in US prisons.

            2. Isnt it kindof weird to ignore the larger criminal justice issues at play here to score points against your political opponents by claiming they ignore the larger criminal justice issues to score points against their political opponents?

          2. ” the Left, in general, is noticeably absent from the prison reform movement,”

            Hurray for the Left! And shame on Libertarians for joining some reformist bandwagon. As Lord Marborough once put it, “Reform? Reform? Aren’t things bad enough already?”

      3. I’m from south Texas. I know what you did there, and approve!

      4. Michael Dukakis, the governor who did the aforementioned veto.

        Mexico Supreme Court ruling that life without parole was cruel and unusual punishment, thus blocking extradition of a murderer.

        European Parliament passing a rule that outlaws life sentences or sentences over 25 years.

        1. So denying someone the particular vengeance pony one wants is equivalent to “opposing punishment of crime per se“?

          Sounds legit.

  5. They’re staying within the limits of the Eight Amendment by making cruel punishment usual punishment.

    Had the amendment read “cruel OR unusual punishment” the Supreme Court could stop this sort of thing. Tragic drafting error, move on.

    1. Good point

    2. What could be more cruel and unusual than stealing away a chunk of someone’s life while subjecting them to acts of violence and sodomy?

      1. Also breaking up their families and rendering them almost unemployable.

  6. Something that needs to be done is to decide what, if anything, incarcer’n is for. Advanced society has ducked that Q for a very long time.

    1. Facts not yet in evidence, sir. The invention of wifi and Starbucks does not make a society advanced.*

      Otherwise in full agreement.

      *Until I see a damned lightsaber in my hand, we still have work to do, by gods.

      1. You can lighten sabers all you want, there’ll still be work to do.

  7. What does incarceration do except teach people how to survive in prison, and how does that make them better members of society?

    I think Heinlein got it right in Starship Troopers. Pain and public humiliation works. Lock shoplifters in the stocks for a day. Give violent criminals a few licks with a whip. Save prison for those who simply cannot function in civilized society. Give the rest some swift justice, and then let them go back to contributing to the economy.

    You all owe me two cents.

    1. Sorry, my ACA premium sucked up my last nickel.

      1. I just found a nickle in the grocery store parking lot. You can have it.

        1. email it to him

    2. Alternate punishment for property crimes makes sense. The way we have it now, if you’re the victim of a burglary, and the perp is caught, you end up paying twice.

      Charles Colson championed restitution for non-violent property crime. It, of course, went nowhere.

    3. Pain and public humiliation works

      Aboard Royal Navy vessels, those mates who could take a cat o’ nine tails without flinching earned a high status reputation.

      Why does everyone forget how males work?

      1. Admittedly the social environment of a Royal Navy ship is a bit different from a landed community however. Public shaming and shaming punishments do have a history of somewhat success in small, tight knit communities (for example, in my country, it was a vital part of community order in isolated areas).

        1. Shaming, yes…what I’m saying is that pain isn’t always shaming for men.

        2. Don’t talk to me about Royal Navy tradition.
          It’s nothing but rum, sodomy and the lash.

          1. Go on…

            1. This is a Winston Churchill quote, possibly apocryphal, but a great one nonetheless. Ranks up there with “in the morning I will be sober but you will still be ugly.”

    4. Heinlein at least knew the right questions to ask, but that’s the prerogative of a sci-fi writer. The trouble is that the real world has a huge investment in the status quo, and can’t get out of this far-from-optimal well it’s in without climbing over badness in any direction. I can’t think of many incremental reforms whose costs wouldn’t exceed their benefits, and the problem is that starting from scratch is infeasible.

      I would incarcerate only acutely agitated individuals, which means no long-term incarceration; maybe 90 days max, & that’s a high estimate. It should just be cooling-off time. Persons you’re convinced need to be restrained longer than that should be put to death, because their life is of negative value, possibly even to themselves. If someone needs to be restrained in a way that leaves some value to them, incarcer’n’s still inefficient compared to other means of disablement. If you want to punish people, there’s no quantitatively objective negative value any more than there is positive value, but incarcer’n looks like a horrible return on investment. I’d say just inflict literal pain quickly if you want to punish, such as via electric shocks. And of course you need to determine whether punishment’s such a good idea to begin with.

      Incarcer’n’s a lousy compromise that’s been muddled into. It achieves some of what people want it to, but at enormous cost compared to the benefit. Most of what it achieves is achieved within a few days.

      1. Persons you’re convinced need to be restrained longer than that should be put to death, because their life is of negative value, possibly even to themselves.

        While I agree in principle, you must ask who will make that determination and how will it be abused.

        1. First decide what needs to be done. Then you can decide how & by whom.

    5. I agree, I would also add restitution to victims, and using prisoners as a labor force again.Like Hannibal Lecter said ” a rational society would either kill me or put me to some use”.

      1. I’m mixed on restitution. Incarcerating someone is taking away a chunk of their life, and restitution could effectively do the same thing if the person lacks the ability to earn a good living. A poor person with few skills would end up working for the restitution instead of building their own life. That’s why I lean towards pain and public humiliation. Once it’s done it’s done. I don’t think lingering punishments serve any purpose.

        1. I think the that both incarceration and corporal punishment ignore the victim to some degree. If some one steals my TV, why shouldn’t they have to replace it?

          1. Hopefully they get the tv back, but I see your point. I meant when restitution goes beyond just repaying the loss incurred by the victim, and becomes punishment in and of itself.

            The problem is the people who are attracted to power tend to be the worst that humanity has to offer. Police officers, politicians, prison guards and such. They seek power as a means, not an end.

            So no matter how a system is designed, it will always be corrupted because the people who seek to run it are already corrupt.

            1. I agree that restitution should only be enough to repay the victim’s losses. That amount should be fairly easy to decide in court. The victim or his insurance company could turn in an invoice for the dollar amount of each item stolen or destroyed. And of course, the lawyer for the defense should have the chance to dispute that amount. This happens all the time in civil court anyway. The real question is what to do with criminals who can’t or wont repay.

              1. Simple dollar for dollar restitution would be an incentive to crime.

                Rob a bank..get caught…give the money back and begin the search for a less well guarded bank ?

                That’s not a deterrent to crime.

                1. Can deterrence be justified at all, then?

                  1. Deterrence like well armed bank guards seem OK.

                    1. That’s good, but is the bank guard primarily a deterrent or a preventive?

                    2. A bit of both, I’d say. While prison is somewhat of a deterrent and not at all a preventative.
                      It seems like people rob banks because it is fairly easy to do. If the chance of getting shot went way up, fewer people would rob banks I would think. I suppose that might also result in fewer, but more violent robberies.

              2. If the restitution’s any greater than that, then the victim is benefiting from crime.

          2. This, a bunch of this.

            We currently maintain that a convicted criminal bears a debt to “society” which must be repaid. Horseshit. As Suthenboy said once (and I’m kicking myself that I didn’t copy down because it was an amazing quote HINT HINT postitagain) society is not an entity which can possess rights. Or debts, for that matter.

            Society has not been injured, an individual has.

    6. Interesting take. Need to think about it, but sounds good at first blush.

    7. I hounded the spousal unit to read Starship Troopers. Finally did, and it was an epiphany.

      That movie was a horrible thing to do to a great book. Oh and I maintain to this day that Cameron’s Avatar shamelessly ripped off the jumpsuits.

      1. No, the movie was a great thing to do with a great book.

        Too many fans of X want adapt’ns to be the same as X. I just see that as redundancy. I like an adapt’n that surprises me.

        1. Well, the cheese factor certainly surprised me.

          It isn’t that it wasn’t “just like the book”. The book was amazing. The movie phoned it in. All of Hollywood, and they couldn’t get someone who could act for a work of Heinlein?

          *Excepting NHP, obvs.

          1. I thought the cheese was deliberate, including the choice of actors.

            1. Not sure what you mean by cheese, but if you mean the satire, then of course!

              But I also love surprises, as when a character is approximately reproducing a passage from the book questioning the purpose of limited war, and gets a sudden answer hilariously different from the one in the book. Reminds me of a similar shocking & fun surprise in the movie adapt’n of The Mothman Prophecies.

              1. I thought the movie was a hilarious sendup of 50’s sci fi horror, only orthogonally related to the book.

                I am apparently in the minority though. A friend and I saw it in a packed theater when it came out. We were literally the only two in the theater laughing. Everyone else was recoiling in horror.

                “Medic!” Guffaw!

                Wow, did we get a lot off horrified stares. I suppose the moral of the story is: don’t go to violent parodies in proggie neighborhoods.

                1. I had the same reactions when I took my niece to see the second Twilight movie. She stopped watching them with me after that. Said I ruined all the good parts by giggling uncontrollably.

  8. I think a large part of the problem isn’t that California locks up so many people, it’s that they went from locking up a below-average number of people to locking up an average number of people and the system simply wasn’t designed to handle that many people.
    .
    The question is: why did California go from locking up relatively few people to locking up just as many as any other state? I would suggest that it’s all those damn ‘peace and love and freedom’ commie hippies that flocked to wonderful California in the ’60’s and ’70’s – and then figured out that allowing people freedom meant they are free to choose things the peace and love and freedom commie hippies don’t approve of. You can be free to smoke organic, free-range, gluten-free marijuana but don’t even think about shopping for cigarettes at a Wal-mart while eating a Big Mac. And don’t be bogarting that joint, either – everything’s community property here.
    .
    Nobody’s as authoritarian as an ex-anti-authoritarian who’s been given authority.
    .
    And how the hell do you operate the paragraph breaks on this contraption?

    1. It was the prison guard unions. They were behind every tough on crime effort in the state from the 80’s onward.

      1. Bang on.

        And the fact that Cali is now a one-party state where the one party is more or less a subsidiary of public employee unions.

        I honestly believe this is at the very root of why Obozo became Mr. Uber-Drug Warrior from moment one of his Administration. The Democrat party is not going to bite that big hand that feeds. Ever.

        And then the Republicans are the “law and order/I hate minorities” party, so there is no meaningful constituency for any other approach.

  9. “Doyle Wayne Scott, a former head of the Texas prison system, pronounced California’s prisons “appalling,” “inhumane,” and “unacceptable,” stating that he had “never seen anything like it” in his 35-year career.”

    Mistreatment of California inmates earns rebuke from former Texas prison official; SJWs hardest hit.

    1. Doesn’t bother them a bit. They are the masters of ignoring evidence to the contrary and doublethink.

  10. if the thought of going to prison does not deter the crime, can prison really be that bad?

    1. I don’t know. Maybe you could get yourself sent there and you can report on it for us? After all, it’s can’t really be that bad, right?

    2. People don’t commit crimes because they think they’re going to get caught.

  11. Speaking of prison…

    “Substitute teacher who showed graphic movie to classes sentenced to 90 days in jail…

    “”They put a permanent substitute in a high-school Spanish class who can’t speak Spanish at all [said the judge]. Here we are, with the Columbus public schools telling us what wonderful things (they) are doing.”…

    “Sheila Kearns, 58, was convicted in January of four counts of disseminating matter harmful to juveniles, all low-level felony offenses….

    “Kearns, of Miller Avenue on the South Side, told police she showed the movie The ABCs of Death to her classes on April 11, 2013, without reviewing it in advance….

    “Two of the students who saw the movie testified. The judge said he was “shocked and disappointed” that other parents refused to let their children testify.

    “”That was wrong,” he said. “The community has to take responsibility.””

    http://www.dispatch.com/conten…..enced.html

      1. In another film a woman wears a gigantic prosthetic penis. We see ejaculation from the fake penis and then a blade shoots from the tip of the penis. It is implied that the blade penetrates another woman, although nothing is shown other than a spurt of blood and blood on the woman’s clothing.

        So Sugarfree finally got his script accepted. I guess congratulations are due.

    1. She should have been fired, but I don’t know how jail time makes sense for this. I’ve seen the movie (which is terrible and a gigantic piece of shit) and it clearly isn’t appropriate to show in a classroom, but firing seems to be a more reasonable punishment than actual prosecution.

      1. Her excuse is fucking idiotic though:

        Kearns, of Miller Avenue on the South Side, told police she showed the movie The ABCs of Death to her classes on April 11, 2013, without reviewing it in advance. She told a detective she had her back to the screen and never turned around to watch the movie as it played for five separate classes throughout the day.

        Really? You never once turned around while people were getting decapitated and apparently you also couldn’t hear what was going on in the movie? And the movie is called The ABCs of Death, but at no point did the title clue you in?

        Jesus.

        1. Some of the students probably enjoyed the faux gore.

        2. She told a detective she had her back to the screen and never turned around to watch the movie as it played for five separate classes throughout the day.

          Really? You never once turned around while people were getting decapitated and apparently you also couldn’t hear what was going on in the movie? And the movie is called The ABCs of Death, but at no point did the title clue you in?

          Barack Obama claimed to sit in Jeremiah Wright’s church every weekend for 20 years and not notice the content of his sermons. So this teacher’s excuse might fly with some people.

  12. The most pathetic thing I’ve ever read.

    I Hate Myself Because I Don’t Work For BuzzFeed

    Okay.

    I just? I hate this?my life. I hate living where I do (where literally every other media person lives, take a guess). I hate the media’s culture. I hate the media in general. I didn’t used to but working in it for the last few years has taught me to. I mean this business is so fucked up and I don’t understand how anyone could say otherwise? unless they work at BuzzFeed where literally everything is perfect and the industry is in great shape because you get free shit, never get fired, traffic is always going up, and the money never ends.

    This guy literally wrote like a thousand words freaking out about how shitty his life is and how the only way his life could conceivably be improved is if he is hired by Buzzfeed. The best part is that it’s horribly written, so I’m surprised someone who is this awful of a writer wasn’t immediately hired by Buzzfeed since he would fit right in.

    1. I Hate Myself Because I Don’t Work For BuzzFeed

      We’d hate you even more if you did work for Buzzfeed.

      1. Since I don’t read buzzfeed, I really wouldn’t give a shit one way or the other.

    2. Sounds like a joke to me.

  13. Cruel, unusual, and crowded. Just like Hillary Clinton’s vagina.

    1. Crowded by who and or what?

      1. Must we talk about Shrillary’s vagina. I just ate.

        1. You munched Hillary’s carpet? Ewww….

      2. ‘Crowded by who and or what?’

        By a snuke.

  14. I only read the first two lines and already got sick.

  15. My .02…

    Most prison problems can be fixed by addressing what rises to the level of a crime.

    Eliminating the existence of crimes without victims would reduce the prison population by 60%. Which means 60% fewer cops. 60% Fewer lawyers. 60% fewer courts….

    As far as the treatment of those who’ve actually infringed upon the rights of their fellow man… Forgive me for not caring too much about their wellbeing.

    Innocent until proven guilty.
    Beyond reasonable doubt.
    Punishment should fit the crime.
    Any prosecutor/cop who puts an innocent person away is personally held civilly and criminally accountable.

    Make them work to pay for their facility.

    1. Any prosecutor/cop who puts an innocent person away is personally held civilly and criminally accountable.

      Disagree. Any prosecutor/cop that puts an innocent person away through fraud or other elicit means should be held personally liable. There are always going to be people wrongfully convicted through no one’s fault, and the cops/prosecutors shouldn’t be held legally responsible for doing their jobs just because legitimate mistakes were made.

      1. If they knowingly and intentionally put an innocent person away, then in my opinion they should be put to death. Seriously. Anyone who would do that does not deserve to live.

      2. Any prosecutor/cop that puts an innocent person away through fraud or other elicit means should be held personally liable.

        Okay that sounds reasonable at first thought, BUT are you not entitled to restitution if you are wronged due to neglect or incompetence?

        I mean, the doctor who takes out the wrong kidney didn’t mean to fuck up…but he’s liable. I said “civilly and criminally” because what you describe is obviously criminal, but they need to be held accountable for their incompetence as well.

        1. A lot of the time it’s not incompetence though. You can competently follow the evidence and nonetheless be led to the wrong conclusion.

          Doctors aren’t held liable every time a patient dies in their care and a cop shouldn’t be held liable every time the wrong person is convicted. Hell, in that case why not let them sue the jury?

          1. Let the two systems be similar then. As I understand it, now they can’t be sued at all, which means they don’t really have any incentive to give a rat’s ass if they have the right guy or not.

            1. They should have a moral and ethical incentive to make sure they have the right guy. Any cop or prosecutor who knowingly railroads an innocent person has no morals or ethics, and as far as I’m concerned is not fit to be a member of society.

              1. Cops? Moral and ethical?

                AHAHAHAHAHAHA

      3. Why not? Have you ever heard of strict liability? Jack Marshall explains it

        Anyone who owns a gun and is negligent in storing, securing, and otherwise preventing the possession, handling or use of that gun is jointly and criminally responsible for any crimes or harm to individuals or property that result from the use of the weapon. Negligence will be defined as “if the wrong person gets a hold of the gun or guns, the owner is negligent, no matter what measures he or she took to prevent it”?that is, strict liability. If someone gets to use a gun that belongs to you, you are responsible, and it doesn’t matter if you had the gun completely disassembled in a bank safe guarded by a fire-breathing dragon. This would mean that the gun-owning mother of the Sandy Hook shooter, had she not been shot dead by her deranged son before he went on his murderous rampage, would have faced murder charges for allowing a disturbed young man and her legally acquired guns to be under the same roof.

    2. Make them work to pay for their facility.

      I agree in principle, but this is something that would no doubt be abused. Just as prison guard unions work hard to make sure as many people as possible are locked in their cages, a warden with a slave labor force would do everything he could to keep and expand it, and then use it in a corrupt manner to enrich his cronies.

      1. This is pretty much the plot of the hilariously bad Untamed Youth starring the buxom Mamie Van Doren. Of course, the teenaged prisoners also do musical numbers while picking cotton, but you can’t have everything.

      2. You could probably make it so every cent earned went towards the facility and nothing else. Let them keep anything above that so they have something to start from when they get out. Hell, it might be an incentive to work instead of shanking your cellmate. Maybe rehabilitative in nature? They learn a trade and work ethic?

        I’m sure there are downfalls I haven’t thought of. I’m brainstorming.

        1. You could probably make it so every cent earned went towards the facility and nothing else. Let them keep anything above that so they have something to start from when they get out.

          Before you know it they figure out how to raise the cost of running the facility to use up every dollar that the prisoners earn, just as government figures out how to spend every tax dollar and then some. Absurdly high pay and benefits, can’t get fired, employees who literally do nothing but show up, and so on and so forth. The ability of people to abuse their power can never be underestimated.

        2. My boos said that when he was a kid in Arkansas, every state prison operated it’s own farm. They produced enough to pay all the expenses of the prison, and a sizeazble chunk of the state school budget every year.

          1. boos= boss.

          2. My boos said that when he was a kid in Arkansas, every state prison operated it’s own farm.

            THEY’RE GONNA PUT Y’ALL BACK IN CHAINS!!!1!11one hundred and eleven

            At least you know that’s how the left (and Botard the Hotard) would demagogue it…

        3. How about a fine as an alternative?

    3. Eliminating the existence of crimes without victims would reduce the prison population by 60%.

      nope

      1. Well reasoned.

        Care to elaborate?

        1. It’s more like 30%, but substitution effects would make the real number lower.

          1. Yes, I was spitballing the number…thought that was obvious…but…

            (51% of the federal prison population) were imprisoned for possession, trafficking, or other drug crimes.”

            State: “Drug offenders comprised 16% (210,200 inmates) of the total state prison population

            And that’s just drugs.

            1. State: “Drug offenders comprised 16% (210,200 inmates) of the total state prison population in 2012.

              Approximately one-quarter of those people held in U.S. prisons or jails have been convicted of a drug offense.

              Like I was saying …

              1. Fine, I stand corrected. Change all my numbers to 30%. Point stands.

                1. What percentage of violent crime would disappear without a Drug War?

                  1. Very little, I’m afraid. The people with a propensity to commit drug-related violent crimes are almost entirely people with a propensity to be violent, period. While it’s fun to conceive of stories such as that in Breaking Bad, there are extremely few people who’d be driven to violence by the circumstances alone. Even if they have no other way to settle their disputes, regular folks who’d enter illegal lines of business for the most part would just let things slide rather than batter or kill people or even smash their stuff.

                    People make too much of such secular trends as seen in violent crime as related to, for instance, USAn liquor prohibition. If you look at the crime trends in other countries that temporarily had a prohib’n on liquor, the association isn’t there, and if you adjust for ages of popul’n even in the USA you see a reduction in the correlation.

                    What does seem to produce a lot of violent crime is combatants coming home from war. Killing’s a habit some people have trouble breaking.

    4. Which means 60% fewer cops. 60% Fewer lawyers. 60% fewer courts….

      Which means eliminating the existence of crimes without victims will never happen.

    5. That’s true, but it’s like saying most of the problem of taxation could be solved by everyone getting richer, or that most of the vaccination problem could be solved by wiping out infectious diseases. I think criminal law is enormously fucked up, possibly even at the conceptual level, but that doesn’t mean its back end can’t be worked on separately. The main problem is that mere quantitative changes or other suggested reforms to incarceration are unlikely to improve things overall, but rather just make people happier in some ways while making people unhappier in others, and that the whole legitimacy of incarceration needs to be questioned and alternatives considered.

  16. Judge does nothing while girl is railroaded by pigs

    http://www.8newsnow.com/story/…..mily-court

    1. His attorney declined an on-camera interview but claims the marshal’s arrest was legal because nobody in the courtroom tried to stop him.

      Well of course no one tried to stop him. He’s part of an armed gang that commits violence without consequence and always backs up their brothers no matter what they do.

    2. “I just hope I did the right thing by telling internal affairs,” Contreras said. “It makes me feel good because now I know that I was right.”

      From now on, Ms. Contreras, the pigs are going to arrest you simply for looking the wrong way. 🙁

    3. Fired, at least

    4. Family court judges are terrible. Something about that job attracts the most crazy/incompetent people.

  17. It’s great that in America our Muslim minority is very well integrated and moderate compared to the rest of the world, but unfortunately they’re picking up our worse habits.

    “I consider myself a mipster”: How Muslim hipsters are forging their own identity

    Goddammit.

    The benefit’s format was a variety show. Early on, a young female comic did a stand-up routine on sex. “I’ve been dating recently, don’t tell my parents,” she told the crowd. Another woman followed with slam poetry about witnessing 9/11 and strangers’ suspicions of her after the attacks. “I’m a terrorist,” she yelled. Next was a poet from Oakland who read from his smartphone, “I’m an insurgent of the imagination.”

    Goddammit.

    Even the Salon comments are mocking these people. It’s especially bad that they call themselves ‘Mipsters’ when clearly they should be calling themselves ‘Hiplamists.’

    1. You’d have to have a heart of stone not to laugh at the idiocy of shit like this.

    2. It’s Always Sunni in Philadelphia.

    3. It’s the East Village – nothing to worry about.

  18. The GOP’s noticeable absences in Selma

    But the Republican leadership ? all of which was invited to attend ? plays a unique role in representing the party overall. And yet, these leaders declined.

    http://www.msnbc.com/rachel-ma…..nces-selma

    Strange, nothing in here about the entire democrat senate leadership not attending.

    1. I fucked up the link…

      http://www.msnbc.com/rachel-ma…..nces-selma

    2. Also nothing about the fact that Tim Scott helped organize the rally.

      1. MSM bias is just a myth and a crutch that the GOP needs to move on past. Seriously, why won’t they just nut up and answer the media’s legitimate questions?

        /Botard the Hotard

        1. Can not the MSM be fined or punished for their bias?

        2. Can not the MSM be fined or punished for their bias?

    3. As I said in another thread, fuck the Boomers’ reunions around the historical events they lived through.

      Can we finally move past August 1974?

      1. Some of it is pretty bad, but some of the major events of the civil rights movement seem to be worth commemorating.
        What do you want? People like anniversaries.

  19. While part of my hopes that in the future people will look back at the current penal system as barbaric and cruel, human nature ain’t changing any time soon. Any system will be abused and corrupted because it’s run by people.

    1. Then we need to place computers in charge.

    2. I couldn’t help but be reminded of a quote I saw today from somebody in the toiletries industry to the effect that 5 yrs. from now, people will think how awful or silly it was that people used shampoo.

  20. Cruel and overcrowded, but not unusual.

    1. ? It’s not unusual..?

  21. Make everything currently punishable by jail time a tort and most, if not all, of these problems go away.

    Of course to win a tort you have show actual harm…

    1. Two thoughts:

      1. If you are going that route, you need to make the penalty for filing a false suit, significant.

      and more importantly

      2. What happens when the shitbag has nothing to take?

      1. 1. Yes.

        2. Some form of outlawry where he can be killed without material consequence and/or an indentured servitude program where he can pay back what he owes. If both than going into servitude means he is not an outlaw and is still protected from being killed.

        Of course there are degrees here. If the offense is minor and the amount owed is small neither option really works. So I would suggest aggressive reputational effects. Such as noting the person in a curated and reputable database as someone who cannot be trusted and owes money. No one is going to want to kill someone over that but many would be willing to deny him services and that should make the cost of being a shitheel higher than any rewards attending to that behavior.

        You, as the victim, might not even have to deal with any of this. Your homeowners’s, renter’s, car or whatever insurance pays for your loss and then the insurance company handles the rest.

      2. If the shitbag has nothing to take (not even clothes or blood or a gold tooth), then the shitbag’s already living an awful life.

  22. I get paid over $87 per hour working from home with 2 kids at home. I never thought I’d be able to do it but my best friend earns over 10k a month doing this and she convinced me to try. The potential with this is endless. Heres what I’ve been doing,
    http://www.go-review.com

  23. I get paid over $87 per hour working from home with 2 kids at home. I never thought I’d be able to do it but my best friend earns over 10k a month doing this and she convinced me to try. The potential with this is endless. Heres what I’ve been doing,
    http://www.big-reports.com

  24. I don’t see where US citizens are going to tolerate fewer prisons and/or fewer prisoners. As a nation, it’s not our style. We like the “law and order” ticket. We like politicians who run on the “tough on crime” platform. As it turns out, you can’t possibly give this many prisoners “due process”… so we do without due process, and other Constitutional principles, for the sole purpose of locking up more people for longer periods of time.

    US citizens feel that criminals hide behind the Constitution, and that their cover should be stripped from them so that “justice” may be done.

  25. You think Lois `s posting is nice… on Sunday I bought Jaguar E-type since getting a cheque for $9279 this last 5 weeks and more than ten thousand last month . it’s definitely the nicest-job Ive ever had . I began this seven months/ago and straight away was bringing home minimum $79, per-hr .
    why not try here ????????????? http://www.jobsfish.com

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