NEWSBYBRIAN SULLIVAN

Our ability to get information about people's backgrounds has expanded massively in the past several years. Governmental agencies and private companies have relatively easy access to huge amounts of information about your personal history. This is a little unnerving for most people, and it raises some serious problems for individuals who have a criminal records. People with convictions, or even arrests, on their records are blocked from receiving certain benefits and necessities. In civil legal services, I constantly meet clients who are paying for their crimes long after their sentences are served. And it is not only convicted criminals who are paying: there are significant public costs associated with surveilling convicts and denying them benefits based on what we find.

I work mostly in housing, and old convictions constantly present barriers for my clients. City and state agencies frequently deem individuals with criminal records ineligible for public housing. Private landlords can use background check companies to screen tenants for criminal histories. These background screenings don't only pick up convictions; sometimes arrests or charges of which defendants are acquitted show up. Based on this information, landlords decide not to offer leases. This surveillance also takes place in the employment arena. A criminal conviction can make it difficult or impossible to get a professional license from the state. Like private landlords, employers make increasing use of background checks. If you have a criminal history it will be much harder to get a job. At the margins, this surveillance and discrimination on the basis of criminal record will force people into joblessness and homelessness.

The public cost of homelessness is massive. Coalition for the Homeless in New York City estimates the cost of housing a homeless individual in the shelter system at $23,000 per year. Similarly high costs are reported in other metropolitan areas. People in steady and long term public housing, on the other hand, are much less expensive to support. Similarly, joblessness is an expensive reality for cities and states. Large unemployment rolls cost municipalities huge sums of money in public benefits. Further, joblessness is a big contributing factor to recidivism. It makes sense that if you don't have a place to live, and you don't have a job, you would be more likely to commit another crime. To the extent that there is more crime there are likely to be more prisons funded by public bonds. In other words, a homeless person living in the shelters and without a job is much more expensive to the public than an employed person living in steady housing.

Because of these costs, our willingness to permit public and private background checking turns out to be a very expensive decision. When someone is denied public housing because of a criminal conviction, we have to pay for them to be sheltered. When someone is denied a job, we have to pay for certain public benefits and for the increase in crime that joblessness entails. And it is not just that this policy is expensive. It also results in social and physical segregation and stratification.

At the state level, agencies and courts should make it easier to demonstrate rehabilitation. Some level of background screening is probably necessary, but if someone has served their time we should make it easier for them to move on with their lives. The use of background checks by private companies should be more sharply regulated. Private organizations are not as easily subject to democratic control, and it doesn't make sense to subsidize their preferences by paying for their decisions.

It isn't hard to find examples of how the criminal justice system has failed mentally ill individuals, but a recent failure that has received wide coverage was particularly gruesome. On December 9, Andre Thomas, a Texas death row inmate, pulled out his own eye and then ate it. Mr. Thomas was convicted in the murder of his estranged wife, their son, and her daughter and was awaiting execution. While Mr. Thomas had been awaiting his trial for the alleged murders he had pulled out his other eye in a similar manner. Despite this fact, and despite Mr. Thomas' history of mental illness, a Texas court ruled (a ruling that was sustained on appeal) that he was competent to stand trial.

This is a complex situation as the murders that Mr. Thomas is accused of committing were violent and troubling. Further, Mr. Thomas confessed to the killings shortly after he allegedly commited them. These facts, however, do not relesase the criminal justice system from the responsibility of dealing with Mr. Thomas' illness in a sensetive and thoughtful way. To begin with, it is not clear if Mr. Thomas was competent to waive his rights at the time that he made the confession to the police. Even if Mr. Thomas is guilty of the murders, there needs to be official recognition and treatment of his mental illness. The signs of such illness were abundant, and if you are interested in reading more you should chek out this great post on Prevention Not Punishment.

In cases like this the court system clearly needs to change its standard operating procedure. Mental health courts a good alternative to the usual criminal justice system in that they try to ensure that some sort of treatment is provided to defendants with mental health issues. Further, these courts can focus on placing defendants in community-based treatment. Institutionalizing disabled individuals, either in hospitals or prisons, and segregating them from the rest of society is not the right approach. Mental health courts and criminal defense programs are popping up around the country, and are a clear step in the right direction. I don't know if they would have save Mr. Thomas or his family, but I hope that they represent a burgeoning awareness of a need for change.

Here are few of the stories from this past week that I didn't get a chance to expound on. As always, if you have an interesting story that I missed here, let me know, or put it in the comments. In writing this blog for the past week I have noticed the your comments are often much more interesting than the post itself.

There were a couple of stories about exoneration, an area near and dear to the heart of Matt Kelly, this site's usual blogger. A Kansas man who was previously denied the right to a DNA test that could prove his innocence has been granted that right. NBC News in Dallas reported on Mr. Charles Chatman who was wrongly convicted of rape when he was 21, but since exonerated based on DNA evidence. For more on exonerations (DNA fueled and otherwise) check out the Innocence Project's website.

In a rough story out of Oakland California, a police officer shot and killed an unarmed man on the Bay Area's BART rail system. The victim was unarmed, on his stomach, and completely subdued when the shooting occurred. Not suprisingly, there has been serious outrage over this shooting. A criminal attorney in Maryland wrote an interesting and thoughtful blog post on the subject of police violence, discussing how frequently such violence actually occurs. All the same, a shooting like this is very shocking.

This past week saw a couple interesting stories on prison and detention facilities. We just love locking people up here in the States (in part because operating jails is such a lucrative business), but the conditions in which people are held are far from ideal. Our immigration detention program has come under repeated fire from advocates in the area. In Illinois, jail overcrowding is getting some local coverage. In a story I saw pop up in a couple places, U.S. Senator Jim Webb has publicly recognized the need to rethink the goals of the criminal justice system.

Finally, in some cute criminal news, a 6 year old boy stole his mother's car and attempted to drive it to school. Apparently the boy missed his bus but was determined to make it to class on time. No charges are being pressed against the boy, but his parents are in a lot of trouble. I am guessing the boy's parents were pissed. How pissed you ask:

Sifting focus away from the domestic criminal justice system, CNN.com reported on Tuesday that five former Blackwater employees have plead not guilty to murder charges in the shooting deaths of 17 Iraqis. The defendants claim that they were defending themselves on a battlefield in a war zone, and thus that the killings were justified. The defendants also claim that they are immune from the current prosecution. I don't think that I am being hypocritical when I say that this is one of those cases where I have little sympathy for the criminal defendants.

To begin with, the whole idea of private contractors enforcing America's will abroad on a battlefield is strange to me. It seems to put an artificial barrier between private and public power. Think of these guys as an extension of the US military. They loose my sympathy because they are an integral part of concerted exertion of force and violence that I find completely objectionable. The one sympathy vote they get arises from the artificial public/private barrier at play here. I am guessing that these Blackwater employees feel pretty picked on. And in a way they are right. Focusing on Blackwater just because they are a private organization can divert attention away from other attrocities and civilian casualties committed in this war. The fact that they are a private organization is problematic for a whole host of reasons, but the violence they participate in abroad should be understood as part of the US military's overall program.

The second prong of the defense's legal theory is also troubling. Blackwater's position seems to be that they are subject to no court's jurisdiction. Not only are they innocent, they just can't be touched by a court. The Justice Department can't go after them, the Iraqi government can't go after them, and the State Department supposedly offered some sort of immunity. They get to basically just do what they want. This utter lack of oversight and control is exactly the sort of thing that Change.org's immigration blogger Dave Bennion criticized in a recent post.

And in case you are wondering, yes, I did link to Dave's post because it mentions one of my former posts.

This article from Vermont is a quick follow-up from this past Monday's Monday map. Although it hasn't happened yet, that state's budget cuts could so affect the court system that criminal defendants' constitutional right to a speedy trial could be violated. Once the ACLU got wind of this they got pissed. There is really only one thing that adequately expresses the profound nature of the anger felt by ACLU attorneys when they observe constitutional rights violations:

Yes, they are that mad. If you are the state of Vermont, you don't want that guy coming after you.

I think the lawsuit proposed by Vermont's ACLU is a good idea if state cuts end up being as drastic as forecasted. The one concern I have is that this isn't the sort of problem that we can sue our way out of. Litigation will only go so far in stopping or changing massive economic and cultural trends. Brown v. Board is probably the best (and most depressing) example of this point. Hopefully the current economic catastrophe and the new administration will inspire a response that goes beyond the courthouse.

On January 5th the National Public Radio (the NPR) had a great story about the unfortunate rise in homicide rates among African-American men in the US. There is much to like about the story, but what interested me most was the focus on social and cultural failings that caused the rise in crime. The online written abstract states:

Some say the findings reflect a much larger problem, the failure of society on many levels.

These failings include:

the profound shift in priorities since the Sept. 11 terrorist attacks, which means police departments have taken on homeland security duties — often at the expense of community policing....communities' complacency because of the overall decrease in crime...[and] funding cuts disproportionately affect black communities, which suffer from broken families, bad schools and active gangs.

The piece is so right on to shift some of the focus to broad based social problems. The biggest problem with the law & order mentality and solutions like stiffer sentences for criminals are that they focus exclusively on individual failings. People who commit crimes are a couple bad apples, and if we route out those failed individuals then things will get better. This is how the debate about criminal behavior is generally framed in the US and this segment is good because it shifts the focus in a productive way. The individual can't be cut out of the equation, nor can a critique of individual strategies for navigating social and structural contexts. But concentrating entirely on individual responsibility misses a big part of the equation. Structural and cultural forms should be a bigger part of the discussion.

As I was perusing the interwebs to find fodder for this blog I came across this amazing website created by Jenn Ackerman. The site has an essay, a photo essay and a film about mentally ill people in America's prison system. (The picture above is not from Ackerman's site.)

A disproportionately large number of inmates in the US have a mental health diagnoses. This is not entirely surprising as individuals with mental illness have a harder time finding a job and generally struggle to be fully integrated into American society. Even after deinstitutionalization that culminated in the 1980s people with mental illness tend to be segregated and isolated.

Ms. Ackerman's website focuses on a prison program in Kentucky called Correctional Psychiatric Treatment Unit (CPTU) at the Kentucky State Reformatory. CPTU is essentially a mental health facility located within the Kentucky prison. Ms. Ackerman's essay details the efforts made by employees and administrators at the CPTU to create a supportive and therapeutic environment for mentally ill inmates. But even those individuals overseeing the project seem to think that prison is not a good place for mental health consumers. Prison conditions seem to exacerbate mental health symptoms. Now that the US has switched over to a punitive rather than rehabilitative model of sentencing and prison administration, the institutions of prisons seem uniquely ill-suited to handle mentally ill inmates in need of treatment. CPTU has no doubt taken some steps in the right direction, but it is very far from ideal.

There is a prejudice in our society that people who are mentally ill are inherently dangerous and belong in a prison setting. Even assuming that all of the mentally ill inmates at the Kentucky State Reformatory are guilty of the crimes accused (an unsafe assumption for a variety of reasons), the perception about the mentally ill is unfounded. Mentally ill individuals are not inherently dangerous. It is in no way clear to me that as a population they are more dangerous than any other segment of society. The problem is rather a failing of social institutions in our society to make a place for people with mental disabilities.

A great article that was published in the New York Times Magazine back in 1999 reveals the various ways that American civil society has failed to include individuals with mental illness. These failings, rather than the individuals with mental illness, bear a large portion of the responsibility for any dangerous behavior. Once we recognize the social nature of disability the goal becomes to change the institutions and social practices that marginalize disabled individuals and prohibit them from participating in society. Simply locking up everyone who behaves outside the norm is not going to work. As Ms. Ackerman's essays and photos reveal, it is cruel and it won't work. Providing greater support and more avenues for meaningful participation and citizenship will work.

I was recently talking to one of my clients about his neighborhood up in the Bronx. He lives in a affordable building located in a high-crime neighborhood. He complained to me about the drug dealers who hang out outside his building and told me he wishes the police would lock them up. He frequently makes off-hand comments about the need to keep dealers locked up for as long as possible. Although he doesn't use the term, I think what he has in mind is longer mandatory minimums and generally stiffer enforcement measures.

It is hard to know how to think about this conversation. It is tempting to think about my client as part of a stable group. He is poor, African-American living in New York City. He is part of the Oppressed. Other poor minorities living in his neighborhood should be part of the same group. The problem is, my client doesn't feel all that much solidarity with the guys hanging out outside his building. In fact, he feels terrorized by them. I couldn't disagree more with his policy suggestions, but I can't just write them off either. His ideas, after all, are based on his lived experience.

This isn't a problem specific to this one individual. When I did some tenant organizing in Washington DC the number one complaint that low-income residents of the city made about their housing is that it wasn't safe. The majority of people I spoke with commented that the criminals in the project or the neighborhood made their lives hell. I heard some conservative policy solutions from these tenants that would make even the most staunch Texas Republican blush. Longer mandatory sentences were just the beginning.

If you are interested in progressive social change (and if you are reading a blog on Change.org, I am guessing you are), then you need to take seriously the voices and perspectives of oppressed people. The perspective of disempowered groups are rarely considered in making policy, or outright ignored. Although it recently came under fire from a group of proven losers, local and national social organizing is a great way to empower disempowered populations. The problem is, once empowered these communities do not necessarily speak with a unified voice.

Even when we don't get a unified voice, there is much that comes from community organizing and involvement. I think my client is wrong when he wants to give dealers longer sentences. I disagree with him that repeat offenders keep cycling through the criminal justice system solely because of personal failings on their part. It seems clear to me that economic and material conditions play some (large) part in causing certain behavior. At the same time, I have to take his perspective seriously. He tells me that his neighbors turn to crime because they are lazy and refuse to hold a job. I respond that it is nearly impossible to find jobs in the US that pay a living wage, but he is unconvinced. We cannot convince each other, but that doesn't mean the conversation was pointless. The very act of open dialogue is important and transformative. Even when ideological tensions cannot be resolved, having a conversation and working together has a healing and positive effect. Further, over time there are differences that can be resolved.

Sometimes the worst policies come from our social isolation from those individuals who are the target of the policy. US immigration policy is an example of this: when you actually work together with immigrant communities it becomes difficult to hate them in the same way. So it is always worthwhile to get out to your local day laborer center or criminal justice organization. They are small thing, but just meeting and talking are transformative activities.

The American Bar Association (ABA) Journal lost all credibility for me when they named Alberto Gonzalez attorney of the year in 2007. Evidently the ABA and I have very different ideas about what lawyers should be doing in US society. And evidently I am not alone as Mr. Gonzalez's honorific was subsequently changed to "Newsmaker of the Year." The following picture pretty much sums up how I felt about the ABA's decision:

The January 2009 issue of the ABA Journal, however, does have an interesting map for this Monday's Monday map feature. The picture above isn't great, but if you follow this link you will go to the ABA Journal's interactive map. The map shows the effects recent state budget shortfalls on the administration of criminal justice.

Georgia is interesting because in laying off 16 attorneys the Atlanta public defender is going to be leaving 1,850 defendants without lawyers. That alone is pretty distressing, but beyond that, why are 16 attorneys covering 1,850 cases? Washington will be cutting mental heath programs that appear to be similar to those I posted about last week. Those programs represent great progress in the criminal justice system, and losing them is a big hit. One potentially good result of the budget shortfalls is that Florida prosecutors may not try any death penalty cases.

This map serves as an important reminder. When I think about the criminal justice system I tend to focus on the fairness of a given policy or law. My initial inclination is to think about whether a policy or law is moral, ethical, and fair. It is easy to forget that these policies and laws are administered by concrete municipal corporations and agencies. These organizations have staff and budgets, and when they run out of money they stop working.

The ABA's map clearly demonstrates that the material conditions and context of given policies should profoundly effect how we think about those policies. A constitutional right to an attorney in a criminal case doesn't mean a whole lot if there aren't any attorneys around to represent you. The right on its own is virtually meaningless unless there is some apparatus to enforce it. Both conservatives and liberals are worried about judicial activism. But faithful and neutral application of the law (if such a thing exists) becomes much less significant when a state cannot even afford to hold a trial on a specific type of issue.

Resources are always tight for public defenders (if you can't tell, I am much more worried about the defenders than the prosecutors), and as Sparky Harlan stated in a comment to an earlier post, reform efforts are constantly running up against the law and order mentality. Tough economic times like these are not the time to draw back on your social justice goals. These are the times to push harder than ever so we don't loose the ground we have fought so hard to gain. So, if you are thinking about committing a crime right now, please hold off for a couple of years to give your local polity a chance to recover.

I know that this site's usual blogger, Matt Kelly, does a roundup on Friday. Sorry for the delay. I hope that the above photo of an irate Dick Cheney adequately expresses your feelings and provides some catharsis. I would promise you that the roundup will appear at its regularly scheduled time next week, but there is a pretty distinct possibility that I will forget to do it next Friday too. Anyway, here are a few of the stories that were interesting in the past week but didn't make it in. If you know a story that I missed, pleas let me know.

Change.org's Gay Rights blogger, Michael Jones, wrote a great (and by great I mean completely depressing) post on LGBT hate crimes. Michael is right about the Matthew Shepard Act.

The war on drugs saw a few interesting articles this past week. The Boston Globe reported that police in Massachusetts are reluctant to ticket people caught with marijuana. Evidently the law authorizing the citations is unenforceable. This could also be one part of a wider movement in this country to decriminalize and generally look the other way when it comes to pot. Another Boston Globe article discussing the new law can be found here.

Newsweek published an article about the United States' failing effort to curb drug production in Columbia. The joint effort by the US and Columbian government (the US has given Columbia $6 billion since 2000) has actually seen cocain production rise in Columbia in the 21st Century. One blogger made the sensible suggestion that the US should spend some of the money we are sending abroad here at home. I am not convinced that prevention programs are all that effective (you are more likely to see a D.A.R.E. shirt on some hipster getting high in the park than on a concerned parent), but I do appreciate the sentiment.

Earlier in the week I wrote about Judge Stephen Manley's problem solving court for the mentally ill and chemically addicted. There are a bunch of these types of courts and programs around the country. A progressive Dallas probation program (yes, Dallas Texas; don't act so surprised) is inspired by the same insight that the standard means of punishment just isn't working.

The always interesting Grits for Breakfast had a post about a potential healthcare emergency for prisoners in Galveston Texas. The University of Texas hospital in Galveston was destroyed by Hurricane Ike, and there are no plans to rebuild it. This is a big problem as that hospital was the major medical center for prisoners in the area.

Matt Kelly has already posted on this subject, but yet another article has been published about fallout in the criminal justice system from the Madoff scandal. These articles are interesting because they demonstrate how closely tied our public institutions are to private power and private individuals. Many people in the US have a strong ideological commitment to the notion of public and private spheres being distinct. The fact that one private investor (albeit a very powerful one) can deeply upset the administration of public justice deeply undermines this notion.

Another mix of the private and public can be found in the American practice of contracting prison and detention out to private companies. Head over to Change.org's immigration blog for some interesting posts on the detention of immigrants. Out in California, protesters denounced the our government's treatment of immigrants as de facto criminals.

Finally, another headline out of Texas grabbed my eye this week. The headline was Eccentric Prosecutor Goes Out Swinging. Normally when I read something like this in a Texas newspaper I anticipate some sort of horrible investigation of all public defenders in the county or a motion to sterilize all incarcerated drug users. This article, however, reports on prosecutor Juan Angel Guerra's attempts to indict Dick Cheney and other federal officials on criminal charges arising from their involvement in the private prison system. That is some good prosecuting!