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This week’s edition of “biggest waste of governmental money” is not a video, but a story that stems from a Supreme Court case. SCOTUS granted cert. in Keith Lavon Burgess v. United States. The certified question is can a sentence be enhanced on the basis of a prior felony conviction, so as to require a 20-year mandatory-minimum, if the prior conviction is for a misdemeanor under state law. Apparently, Burgess’ petition was filed with the assistance of a fellow inmate - Michael Ray. Ray used to be (still is?) a paralegal and is serving time for a fraud conviction.

The problem, now, is that the Attorney General for South Carolina is investigating whether Ray has committed a crime by doing so. The crime? The unauthorized practice of law. Oh yeah. Apparently they’ve got nothing better to do in S. Carolina. I mean, one inmate helping another to challenge his conviction is not to be tolerated, especially if that inmate is doing something that only a select few in this country can do. It’s not like there are a bazillion lawyers in America. Ray reportedly made a whopping $145 for filing that petition (I’m just guessing - 50 hours’ work seems reasonable. He makes 29c an hour). That’s half an hour that a partner at a law firm could have worked. How will he shine his shoes now?

Seriously, this is stupid. The AG should do some real work.

H/T: WSJ Law Blog

SCOTUS issued its much-awaited (by me, atleast) decision in Danforth v. Minnesota [pdf] today, ruling 7-2 that Teague’s retroactivity prohibition applied to Federal courts on federal habeas corpus review. State courts are hence free to apply decisions articulating violations to cases on direct and/or collateral review.

As Justice Stevens makes clear, what the Court does, in say Crawford, for example, is state that a particular act or omission violates the Constitution. It is then left to the states to decide how to remedy that violation.

Neither Linkletter nor Teague explicitly or implicitly constrained the authority of the States to provide remedies for a broader range of constitutional violations than are redressable on federal habeas.

…

Our subsequent cases, which characterize the Teague rule as a standard limiting only the scope of federal habeas relief, confirm that Teague speaks only to the context of federal habeas.

He wraps it up very succinctly:

A decision by this Court that a new rule does not apply retroactively under Teague does not imply that there was no right and thus no violation of that right at the time of trial—only that no remedy will be provided in federal habeas courts.

Whatever this means for federal habeas corpus practice, it is pretty clear that us state practitioners can now argue - with a stamp of approval - that our state courts should provide remedies for constitutional violations recently articulated.

It makes much sense, too, if you think about it in the context of the Fourth, Fifth and Sixth Amendments applied to the states through the Fourteenth. The Court has maintained that States are free to provide greater protections than afforded by the Federal Constitution. This falls in line with that quite well.

Read the whole decision - it’s very interesting. Justice Stevens conducts an in-depth analysis of Justice O’Connor’s plurality in Teague and cites Justice Scalia heavily. Then there’s this odd footnote; perhaps someone can explain:

13. That same year, we similarly denied retroactive effect to the rule announced in Griffin v. California, 380 U. S. 609 (1965), prohibiting prosecutorial comment on the defendant’s failure to testify. See Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966). Shortly thereafter, in a case involving a Griffin error, we held for the first time that there are some constitutional errors that do not require the automatic reversal of a conviction. Chapman v. California, 386 U. S. 18, 22 (1967). Both Shott and Chapman protected the State of California from a potentially massive exodus of state prisoners because their prosecutors and judges had routinely commented on a defendant’s failure to testify.

A much better in-depth analysis from Scotusblog here. More from SL & P.

H/T: SL & P.

Earlier today, I was perusing the transcript of oral argument in the Supreme Court in the matter of Virginia v. Moore. Mr. Moore’s case was argued by Tom Goldstein, of SCOTUSblog. I’ll let his co-blogger give you the skinny:

If the hearing had been confined to the two core arguments of opposing counsel, the discussion would have been simple. The state of Virginia, backed by the federal government, argued for a starkly simple rule: if police have a reason to believe a crime has been committed — that is, they have probable cause — they may make an arrest, even if that is illegal under state law. And, having made the arrest, they may search for evidence of crime and that will not violate the federal Fourth Amendment. Defense counsel for David Lee Moore argued for a rule of equal simplicity: if the arrest is illegal under state law or otherwise, no search may follow, and any evidence found in a search that occurs anyway is barred by the Fourth Amendment. The Court, in reaction, seemed at times to lean each way, but mostly seemed to be diverted by difficult theoretical complications.

Interesting enough. But that’s not what made my day. This did:

JUSTICE SCALIA: Mr. McCullough, the proposition that you’re arguing, does it apply at the Federal level as well? Suppose — suppose I think that my neighbor next door is growing marijuana and I have probable cause to believe that, all right?
So I go in and search his house; and sure enough, there is marijuana. And I bring it to the police’s attention, and they eventually arrest him. Is that lawful search?
MR. McCULLOUGH: If there is State action –
JUSTICE SCALIA: I’m a State actor, I guess. You know –
(Laughter.)
MR. McCULLOUGH: If you have State actors –
JUSTICE SCALIA: You know, a Supreme Court Justice should not be –
(Laughter.)
JUSTICE SCALIA: — should not be living next door to somebody growing marijuana. It doesn’t seem right.
MR. McCULLOUGH: That’s not a smart neighbor.
(Laughter.)
MR. McCULLOUGH: If you have State action and you enter into someone’s home, then the Constitution affords a heightened level of protection. But –
JUSTICE SCALIA: Don’t dance around. Is it– is it rendered an unreasonable search by the fact that I’m not a law enforcement officer at all?
MR. McCULLOUGH: I don’t think the fact of — no. The fact that –
JUSTICE SCALIA: So any Federal employee can go crashing around conducting searches and seizures?
MR. McCULLOUGH: So long –
JUSTICE SCALIA: So long as he has probable cause?
MR. McCULLOUGH: That’s correct.
JUSTICE SCALIA: That’s fantastic.
(Laughter.)
JUSTICE SCALIA: Do you really think that?
MR. McCULLOUGH: I think if there is State action, it doesn’t matter that you’re wearing a badge or that you’ve gone through the police academy.
JUSTICE SCALIA: Or that you are an administrative law judge at the, you know, Bureau of Customs? It doesn’t matter?
MR. McCULLOUGH: I think that’s right. That if you have — if the State –
JUSTICE SCALIA: What about a janitor? You’re a janitor, a federally employed janitor.
MR. McCULLOUGH: Your Honor –
JUSTICE SCALIA: His neighbor is growing marijuana, and he’s just as offended as a Supreme Court Justice would be. Can he conduct a search?
MR. McCULLOUGH: I think if he’s doing it on behalf of the State, the answer is yes.
JUSTICE SCALIA: Wow.

There’s not much I agree with Justice Scalia on, but “wow” is right.

While all the hullabaloo surrounding SCOTUS today may have been centered around Baze, the Court also issued a minor, but nevertheless terrifically interesting decision. In Wright v. Van Patten [pdf], the Court wrote, per curiam, that the Circuit Court’s grant of a habeas was improper because the State supreme court’s decision denying the habeas was not contrary to clearly established federal law (which is one of the two grounds on which a valid State conviction can receive federal habeas corpus review).

Mr. Wright sough habeas review in the first place because at his plea hearing, his lawyer phoned it in. Not phoned it in in the colloquial sense (or even the widely used “he was crappy” sense that forms the basis of most habeas petitions), but rather in the literal sense. He appeared for the plea hearing via telephone.

In a state as small as CT, that is unheard of. Perhaps in them larger jurisdikshuns where theys gots lots of open land and such, it may be common practice (what was I going for there? I have no clue). Still, the idea seems very…dirty. If my client is pleading guilty, I want to be there to stand by him - if for nothing else than to offer support. It’s not only my client’s case, it is my case as well and having been through the whole process side by side, I’d rather not end it speaker to ear.

Anyway, the Court reserved for another day the substantive question of whether appearing by telephone is legally adequate (maybe that answers your question, Scott?). This case was reversed on purely procedural grounds.

Image license info here.

Intriguing news out of SCOTUS today. The IAC during plea bargaining case, Arave v. Hoffman, reported with much fanfare here, may not go forward after all. Per Scotusblog (via SL&P), attorneys for both sides have asked the Justices to vacate the Ninth Circuit opinion and dismiss the case as moot. Defendant’s motion is here [pdf] and the State’s response is here [pdf]. It really is curious. It seems that the defendant wants the relief imposed by the federal habeas court: vacate the death sentence and impose life.

Hoffman was convicted of first degree murder in 1993 and sentenced to death in an Idaho court. Almost a decade later, a federal habeas court vacated the death sentence for ineffective assistance of counsel during the penalty phase of the trial. The habeas court rejected a separate ineffective assistance claim relating to pre-trial negotiations, when Hoffman’s attorney advised him not to accept the state’s offer of a life sentence on the mistaken theory that Idaho’s death penalty scheme would later be found unconstitutional. A Ninth Circuit panel reversed on the pre-trial claim in mid-2006, requiring the state to release Hoffman unless officials offered him the original plea bargain. Idaho appealed, and the Court granted certiorari on November 5.

In the motion to vacate and dismiss, Hoffman’s lawyers say the inmate wished to withdraw the pre-trial ineffective assistance claim in order to proceed with the resentencing originally ordered by the federal habeas court for the penalty phase ineffective assistance claim. According to the motion, a status conference is set for December 13 before an Idaho state judge. Joan Fisher of the Federal Public Defender’s office in Idaho wrote that Hoffman made his decision “[a]fter extensive consultations with counsel,” and that his “trial and habeas counsel fully concur with his decision.”

I wonder what made him decide to do this. It’s not like the State was arguing that the death penalty should be re-imposed. Anyone have any ideas?

It’s disappointing that this may not be heard. The issue was truly interesting and I would have liked to see what today’s justices had to say about it.

Ever wonder which Supreme Court justice would make it as a stand up comic? Who could successfully start every sentence with: “What’s the deal with…”?

Well, guess no more. The brilliant legal minds at Yale have taken time off from their more intellectual pursuits to bring us the second ever study to analyze the laughter patterns during SCOTUS oral arguments. (Here’s a report on the first.)

It should come as no surprise that the Justice that garnered the most laughs was Justice Scalia.

Justice Scalia continues to lead the Court in getting laughs—fifty-four in all during the seventy-one arguments—with Justice Breyer’s thirty coming in second. Roberts got nineteen laughs during the Term, placing him squarely in third place. Going into the final week of arguments, Justices Ginsburg, Alito, and Thomas were tied for last place with zero laughs, but Ginsburg and Alito both managed to break out of the basement by getting a “(Laughter)” in the waning days of the Term, leaving Thomas, who never says anything audible from the bench, all alone in the cellar.

The study also notices a trend in the reporting, which has started to give us variations on the stolid “Laughter”. Now we are allowed the visual beauty of “some laughter” and “a little laughter”.

Speaking of Justice Scalia, Scott will be over the moon when he hears that The Nino is in the process of writing a book. Don’t expect “1001 Jokes You Can Tell at Oral Argument”, though. This is going to be a book dedicated to telling lawyers how to practice and argue in the Supreme Court. A “how-to”.

But Scalia’s probably won’t be a chart-topper — except among lawyers. Without fanfare or publicity, Scalia and Bryan Garner, the legal writing guru, have joined to co-author a book on the art of persuading judges, both orally and in written briefs.

Even though the irrepressible Scalia sometimes irritates rather than persuades the eight judges he happens to work with, the book seems destined to be a must-read for lawyers whose work brings them into courts. As Scalia is often viewed as the Court’s best and most entertaining writer, his participation in the project is sure to invite comparison with a guidebook on ballet by Baryshnikov or on golf by Tiger Woods.

“Justice Scalia is a very serious student of advocacy,” says Garner, whose Dallas-based LawProse Inc. runs extensive CLE training for lawyers on writing. “The idea is that we can make an important contribution to legal literature… and discuss basic principles of argumentation, rhetoric, and judicial persuasion.”

In an exciting move, SCOTUS today granted cert. in a capital habeas case [petition here, opposition here] to decide whether someone can receive ineffective assistance during the plea bargaining process. The actual facts are slightly more complicated, but as Scotusblog notes, the basic question (which was added later by the Court) is what is:

the remedy that [is] available for ineffective defense lawyer’s efforts during plea bargaining, if the individual was later convicted at a fair trial.

Most of the commentary and discussion in the blawgosphere has centered around whether ineffective assistance during the plea bargaining process is a valid IAC claim, where the defendant then goes on to receive a fair trial. The answers that I have seen thus far have been no. I will respectfully disagree. The answer should be: “yes”.

For example Crime and Consequences says:

The fact that a better lawyer might have gotten him a windfall is not a miscarriage of justice if the final result is a just verdict for the crime he actually committed. Habeas is about correcting injustices, and justice is not a game. Plea bargaining is something we barely tolerate out of necessity. It is not a right to which defendants are entitled, and not getting a deal is not an injustice.

There are several problematic things about that paragraph, but today I’ll deal with just the last. Yes, there is no Constitutional right to plead guilty, but the SCOTUS has held that there is a Constitutional right to effective assistance of counsel at a critical stage of the criminal proceedings. Strickland, 466 US at 686. The plea bargaining process is and must be a critical stage of the criminal proceeding.

plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.

Blackledge v. Allison, 431 U.S. 63

Then we come to Hill v. Lockhart. In Hill the Court held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel”, relying on McCann v. Richardson, 397 U.S. 759, 771 (1970) (all defendants facing felony charges are entitled to the effective assistance of competent counsel). Really, there cannot be another conclusion.

In this case, the attorney misadvised the defendant about taking an offer. Consider a situation where the attorney fails to inform the defendant of an offer that he would have taken. Regardless of whether the ensuing trial was fair or not, the defendant was not informed of the availability of a plea bargain. How can he be said to have provided effective assistance if he failed to inform the defendant of a favorable resolution of the criminal prosecution? How can you say that the trial would have occurred in the first place?

So what then, is the remedy, if it is found that the attorney was ineffective? It has got to be specific performance. But for the ineffective assistance of counsel, the defendant would have taken the offer. He must be put back in the position he was in when the offer was made and given the option to either take the offer or reject it and proceed to trial.

“Poor lawyering” in the pre-trial process cannot be negated by an otherwise fair trial. Maybe I’m just spoiled by CT law. See Copas v. Commissioner of Correction, 234 Conn. 139.

Further update: Workman was executed last night around 1:38 am. Back to your regularly scheduled programming.

Update: Workman’s public defenders are working hard on his behalf. After the denial of cert. by SCOTUS, it seems that they have now filed a Motion for Stay with Tennessee’s Supreme Court. There’s no timestamp, so I can’t tell for sure whether I’m linking to something hours old, but it does reference the fact that three Supreme Court justices would have granted cert, so I think it is fairly recent.

I haven’t posted about this TN lethal injection challenge, but I have been following it. Minutes ago, SCOTUS denied [pdf] the petition for certiorari. Justices Stevens, Souter and Ginsburg would have granted cert. I’m disappointed, but not surprised.

As CDW notes, Workman’s attorneys did a fantastic job. Please take the time to read the petition here [pdf]. All the pleadings can be found here.

Edit: I had the wrong link for the SCOTUS denial. Now updated.

Technorati Tags: death penalty, tennessee, philip workman

SCOTUS handed down its opinion [pdf] in James v. US today. From Scotusblog:

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a “violent felony” for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

Professor Berman is all over this decision and has lots of coverage on it. He has compiled it all here.

Technorati Tags: supreme court, james v us

It’s true. Alabama does not provide indigent death row inmates with representation (that link is to a TimesSelect article, so it’s not free. You could just sign up for a trial membership). It is the only state in the country to (not) do so. In Alabama, there is no statutory right to counsel in petitions for writ of habeas corpus, which, as everyone knows, are the last avenue for a death row inmate seeking to challenge his/her conviction.

Alabama’s attitude? To disregard the landmark provisions of Gideon v. Wainwright and basically shrug. I cannot believe that in 2007, there is still a state that doesn’t think it needs to provide representation to indigent defendants.

Inmates filed a class action lawsuit, which was rejected by the 11th circuit in 2006 [Barbour v. Haley (.pdf)]. Now they are seeking cert. to SCOTUS. Hopefully SCOTUS accepts cert and stomps down hard on this bizarre practice.

Thankfully, in CT, there is a statutory right to counsel for habeas petitioners and death row inmates.

HT: Prof. Berman, who thinks this will (and should) create a blawgosphere storm and CapDefWeekly.

Technorati Tags: right to counsel, alabama, barbour v. haley

My absence from blogging has been long and mostly because I’ve been busy and haven’t been feeling too well. However, a couple of weeks ago, I noticed that SCOTUS had denied cert in Dretke v. Coleman [pdf], a Fifth Circuit case. The ruling in the Fifth Ciruit was:

The Texas Department of Criminal Justice is authorized by Texas law to
impose reasonable conditions on parole to serve the interests of protecting the
community and rehabilitating the parolee. When those conditions impact a liberty
interest of the parolee, they may be imposed only with justification. The Department
may condition Coleman’s parole on sex offender registration and therapy only if he is
determined to constitute a threat to society by reason of his lack of sexual control.
Absent a conviction of a sex offense, the Department must afford him an appropriate
hearing and find that he possesses this offensive characteristic before imposing such
conditions. This court was told at oral argument that evidence of Coleman’s lack of
sexual control exists. None appears in the record, however, and no contention is
made that Coleman has been afforded a hearing meeting the requirements of due
process.

We therefore hold that the sex offender conditions placed on Coleman’s
parole are invalid, and we remand the cause to the district court for disposition
consistent with this opinion. The state is not precluded from further efforts to add
these same conditions to Coleman’s parole upon proper notice and consistent with
this opinion.
Reversed and remanded.

Essentially, that offenders who have not been convicted of a sex offense have a liberty interest created by the Due Process clause in freedom from sex offender classifications and conditions. The state parole department must afford a habeas petitioner an appropriate hearing before it can constitutionally impose sex offender parole conditions upon him. In light of SCOTUS’ refusal to address whether sex offender registration violation substantive due process in CT v. Doe, their denial of cert here is pretty significant.

SCOTUS today granted Rompilla v. Beard [majority opinion] by a 5-4 vote, holding that that even when a capital defendant’s family members and the defendant
himself have suggested that no mitigating evidence is available,
defendant’s counsel is still bound to make reasonable efforts to obtain
and review material that counsel knows the prosecution will probably
rely on as evidence of aggravation at the sentencing phase of trial. The Court granted the petition finding both prongs of Strickland had been met. Writing for the majority, Justice Souter explains:

Counsel knew that the Commonwealth intended to seek the death penalty by proving
Rompilla had a significant history of felony convictions
indicating the use or threat of violence, an aggravator under state law.   

Counsel further knew that the Commonwealth would attempt to establish this history by proving RompillaÂ’s prior conviction for rape and assault, and would emphasize his violent character by introducing
a transcript of the rape victimÂ’s testimony given in that earlier trial. There is no question that
defense counsel were on notice, since they acknowledge
that a “plea letter,” written by one of them four days prior
to trial, mentioned the prosecutorÂ’s plans.

It is also
undisputed that the prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried. It is clear, however, that defense counsel did not look at
any part of that file, including the transcript, until warned by the prosecution a second time.

On the performance prong, the Court concludes:

Without making
reasonable efforts to review the file, defense counsel could
have had no hope of knowing whether the prosecution was
quoting selectively from the transcript, or whether there
were circumstances extenuating the behavior described by
the victim. The obligation to get the file was particularly
pressing  here owing to the similarity of the violent prior
offense to the crime charged and Rompillas sentencing
strategy stressing residual doubt.  Without making efforts
to learn the details and rebut the relevance of the earlier
crime, a convincing argument for residual doubt was certainly beyond any hope.

The prejudice prong wasn’t seriously contested by the State of PA and the Habeas was granted. SCOTUSblog has detailed analysis and commentary. An AP story here.

SCOTUS today issued Miller-El v. Dretke, a Texas death row inmate’s Habeas challenge to peremptory strikes made by prosecutors, claiming that they were made on the basis of race. Lower courts had routinely rejected Miller-El’s claims and the 5th Circuit had even refused to certify appealability. In 2002, SCOTUS reversed that (Miller-El v. Cockrell) and ordered that the 5th Circuit review the merits. Today, SCOTUS reversed the 5th Circuit (again) and ordered that Habeas relief be granted.

Writing for the majority [pdf], Justice Souter delves into the vast evidence collected by Miller-El regarding racial bias. The opinion itself is a fascinating read, especially because it details the disparate treatment of black and non-black jurors who gave extremely similar responses on their juror questionnaires and in voire-dire questioning. The gist, however, is best summed up by Justice Souter himself, when he writes:

In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny. The strikes that drew these incredible explanations occurred in a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race.

At least two of the jury shuffles conductedby the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached.  The State has in fact never offered any other explanation.

Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of non-blacks were questioned with a graphic script meant to induce qualms about applying the death penalty (and thus ——————explain a strike), and 100% of blacks but only 27%  of non-blacks were subjected to a trick question about the minimum acceptable penalty for murder, meant to induce a
disqualifying answer.   

…

The StateÂ’s pretextual positions confirm Miller-ElÂ’’s claim, and the prosecutors own notes proclaim that the Sparling ManualÂ’s emphasis on race was on their minds when they considered every potential juror.   

The state courtÂ’s conclusion that the prosecutorsÂ’ strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state courtÂ’s conclusion was unreasonable as well as erroneous.  The judgment of the Court of Appeals is reversed, and the case is remanded for entry of judgment for petitioner together with orders of appropriate relief.

Justice Souter relies mainly on venirepersons Fields and Warren, both of whom had responses similar to white panel members who were accepted by the prosecution, and yet were struck via peremptories. In fact, as the quote above indicates, Fields was quite in favor of the death penalty and was all too willing to impose it.

Justice Breyer has a very interesting concurrence, where he advocates adopting Justice Marshall’s position from concurrence in Batson: abandon peremptory challenges. Prof. Berman has a nice post on this concurrence.

I’ll get to the dissent soon.

Justice Souter’s majority opinion here [pdf], Justice Breyer’s concurrence suggesting prohibiting peremptory challenges altogether here [pdf] and Justice Thomas’ dissent here.

Initially, I only wanted to link to this post [Supreme Court indirectly considers supermax prison] on Sentencing Law & Policy because of a must-see link. However, the comments have started to raise an interesting point: Do we need supermax prisons?

Prof. Berman points to a post on SCOTUSBlog about Wilkinson v. Austin, the case to be argued in the Supreme Court tomorrow which concerns what sort of hearing process is required before an inmate can be transferred to a "supermax" facility. He then goes on to write

I believe Austin presents the first opportunity for the Supreme Court to examine the most extreme form of imprisonment that our society has devised, although the legal issue in the case does not have the Court directly confronting the nature and conditions of supermax confinement.  Nevertheless, a number of amicus briefs have been filed which highlight for the Court the extreme nature of supermax confinement, and it seems possible that the Court might be influenced by these realities.

So the question arises: Do we need Supermax Prisons?

I recognize that there is a need for a correctional facility in each
state where the state can house the most troublesome, dangerous and
notorious convicts. It doesn’t have to be degrading. Weren’t prisons
about rehabilitation?

I understand that there are severe safety concerns in supermax prisons (or in any prison for that matter), I do think there has to be a certain standard of decency and dignity involved when it comes to treating our prisoners. They, too, are people; regardless of what they have done we must always treat them as such. Otherwise we should not lay claim to being a "civilized nation".

As I stated in the comments to Prof. Berman’s post, I’m not advocating for DirecTV and foozeball (sp?). All I’m saying is that when you condemn an individual to spend a large majority of their life in a 8×10 concrete cell with no windows and 30 minutes a day walking by himself in a concrete "yard" where the only sunlight comes from 20 feet up in the air, I think we need to really think about whether we need to mistreat them in other ways.

Also, we have to realize that prison is a very tense place. There are silent and not-so-silent alliances constantly being formed. Some between inmates and some between inmates and COs. It certainly is a dog-eat-dog world in there. It is understandable for some COs to play inmates against each other, so as to minimize the risk to themselves.

Speaking of which, please view the slideshow at this website. It is the website of an experiment on imprisonment conducted by a professor at Stanford. The results, while not shocking to anyone in the criminal justice field, are certainly stark reminders of what we tend to forget when we go to sleep each night.

On Monday, I linked to a post by Crime and Federalism, regarding Johnson v. California and racial segregation having to pass strict scrutiny. On the heels of that, Howard Bashman provides a link to this L.A. Times piece written by a former California inmate. Joshua Englehart is "a white man who served 37 months at San Quentin (for the manufacture of methamphetamine) and eight months more (on a parole violation) at the Sierra Conservation Center in Jamestown". He thinks the court is "well intentioned but misguided".

He explains some prison "rules":

Rule No. 1: The various races and ethnic groups stick together.

Inmates face a huge amount of racial tension every day in prison. Living in such close proximity to others of different backgrounds and cultures — and the fact that these people, whatever their race or ethnicity, are likely to be from the least educated and most violent segment of society — makes minor differences that might normally be overlooked larger and more significant.

If a black inmate attacks a white inmate in prison, it is considered the responsibility of other white inmates to respond. This provides some measure of protection for those inmates who are not members of any gang but who do not wish to become prey for those who are. You and I may not like it, but that’s how it is.

He then goes on to speculate about some of the problems that desegregation might have:

The fish[new inmate] will follow his "cellie" to chow and sit with him rather than confront a dining area filled with cliques, all potentially unfriendly, where any move could break some taboo or cause offense, like a nightmare version of a high school cafeteria. Because so many of the taboos involve race, only a person of the same race can be an effective guide.

If the authorities break up this system and mix races during processing, it will leave newcomers with no protection. The only other option would be to join a gang, which provides inmates with protection from other inmates in exchange for obedience.

He finishes with:

In my experience, the current system of segregating inmates in cells is looked on by no one — of any race — as oppressive or as a way of promoting racism. It is done for their own safety, and they know it.

This is not about prejudice; it is not about equality. It is about the ability of inmates to survive in bad circumstances. This ruling will strike dread in the hearts of all California inmates when they read about it.

I think it makes a lot of sense. Most people who work in the criminal defense field will have clients who have related similar stories. I don’t disagree with the Johnson court’s ruling that strict scrutiny should be applied. I do think, however, that there is a compelling governmental interest in segregating inmates based on race.

People so easily tend to forget prison life is not the same as everyday life. Heck most people wouldn’t even know where prisons in their state are. Our society is truly in a sad state when we ship thousands of people off into concrete storage boxes and forget about them for years on end. We forget, that for them, survival is an every day ordeal. Perhaps California’s system does really work in protecting the lives of the inmates.