Politics and Corrections

Crime rates have been steadily falling for the last twenty years, but increased and often sensationalist media coverage means that the average American reads more stories about crime on a daily basis. Because of this, people’s “gut” and the statistics simply do not square up. As any attorney knows, where there is a conflict between the “head” and the “heart,” people vote from the heart.

People want to believe that tougher penalties mean lower crime. All the evidence shows that this is not the case. Study after study have demonstrated that mandatory penalties do not reduce crime. Even though the majority of the United States is opposed to “big government” and want tax cuts, corrections appears to be the exception. Economic arguments fall on deaf ears, and people think that simply getting “tougher” will solve the problem.

Dick DeVos’s analysts have correctly targeted this issue as a vulnerability in Governor Granholm’s platform. Because Mr. DeVos has never held government office, he has never made a mistake in his decision of who should be released and who should spend more time in prison. The lack of experience, however, does not demonstrate superior insight, knowledge, or ability to correct the problem. Choosing Mr. DeVos on this basis makes no more sense than choosing me (a lawyer) to perform open heart surgery because none of my prior patients have ever died on the operating table.

I have never been a fan of the Department of Corrections or the Parole Board, but they make difficult decisions on a daily basis. It is impossible to determine which offenders will reoffend and which ones will go straight. You can only make your best guess based on the offender’s history, prison conduct, and the strength of the release plan.

When an offender commits a high publicity homicide, there is a tendency to want to make heads roll, but this is a “knee jerk” reaction. Patricia Caruso is a career corrections professional who has made tough calls and has attempted to be both smart and sensible with corrections. She has implemented tighter controls, but has also moved money into community corrections. Anyone who reads the literature knows that this has one of the highest success rates and is the future of modern corrections.

I have litigated cases against “Prosecutor Granholm” back when she was an Assistant U.S. Attorney. She was smart, a tough adversary, and had a handle on the issues. Her choice in leaders for the Department of Corrections was careful and well chosen. With all due respect, Mr. DeVos, I think you are wrong on this issue.

“First Kill All the Lawyers”?

This often misquoted statement from Shakespeare’s Henry the VI has become the rallying cry of those out to destroy the legal system. Even a cursory reading of the context in which the lawyer killing statement is made in King Henry VI, Part II, (Act IV), Scene 2, reveals that Shakespeare was paying homage to attorneys as the front line defenders of democracy.

The statement is said by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Shakespeare’s quote was really saying that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers.” Properly understood, this statement is a compliment to the practice of law.

Unfortunately, the assault on the legal profession often comes as much from within as from the insurance company, Congress, and other “reformers.” A classic example of this is the new proposal by the New York Bar Association to treat legal blogging as advertising and subject all this advertising to preapproval by the state bar. As FindLaw’s Julie Hidden reports blogging is the heart of free speech. The United States Supreme Court recognized in ACLU v. Reno that the internet is the greatest engine of free speech since “Gutenberg invented movable type.” Many of our country’s earliest political debates took place with anonymous leafletting by are founding fathers (many of whom were lawyers) debated how are new constitution should be drafted and founded

Legal blogging is political speech. Most lawyers do not do it (and certainly this one does not) to self-promote. I do not focus on my legal victories, I focus on the legal system for both its good and bad. Lawyers need to be free to criticize the system and a preapproval system for legal blogs is effectively a Board of Internet Censorship. Even if such an animal properly respected the First Amendment, such interference would slow down this embryonic form of communication. Just think back to the last presidential election and the effect of blogs on that election. While I do not pretend that my little corner of cyberspace is the “Drudge Report,” lawyers have the right (and duty) to speak up about what’s wrong about the system. Moreover, many of our nation’s leading reporters and politicians also have law licenses. The proposal of the New York Bar Association is horribly misguided and contrary to the fundamental principles on which this country was founded.