Gift of the Magi…

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It is the holiday season again, and whether you celebrate Christmas, Hanukkah, Eid or whatever, it is a time when many of us tend to be more charitable and forgiving of our fellow human beings. Is it because we recognize that we are all one big family?

Or do we remember to apply the Golden Rule of “do onto others . . “ more at this time of year? Check out the Rule’s universality at www.religioustolerance.org/reciproc.htm.

Since I began the practice of law in the mid-1970’s, I have witnessed an ever-increasing wave of intolerance, harshness and lack of empathy for our fellow human beings, who get tangled up in the criminal justice system. This is not just Dall’Osto’s usual liberal, ACLU, criminal defense lawyer talk. This is fact, and those of us who practice in the system, be we defense lawyers, prosecutors, judges or law enforcement and corrections personnel know it. 2800 people in prison in Wisconsin in the mid-70’s; now almost 28,000. Less than a half million in prison and jails nationally in the mid-70’s, now more than 2 million. www.sentencingproject.org America has the highest incarceration rate in the world. www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration

Rehabilitation and treatment are gone with the wind of retribution and institutionalization, as the “one size fits all” lock ‘em up solution rules the day. It is, as Eric Schlosser wrote in the Atlantic Monthly in December 1998, the “prison industrial complex”, which is not only a set of interest groups and institutions, but also a state of mind. www.theatlantic.com/doc/prem/199812/prisons. The press, public, politicians and too many involved in the criminal justice system forget that we are dealing with people who have families and responsibilities to them too. It is everything is a felony and every case is a prison case.

Damn the cost to the taxpayers, to the imprisoned and their families and damn the fact that more and longer incarceration for more people is ineffective.

Not the Christmas spirit or the rules for living that I was taught so many years ago in school, by my parents and grandparents and by the priests and nuns in the religion I was brought up in.

Several developments since Thanksgiving lead me to ponder whether we might be reaching a turning point. A previous blog of mine discussed sentencing disparities and the inherent difficulties with the federal sentencing guidelines. On December 10th, the United States Supreme Court issued two decisions, in a combination of liberal and conservative justices, which strongly reiterated that after United States v. Booker, 543 U.S. 220 (2005), federal district judges can exercise discretion and should look to look to the guidelines as advisory only. This resurrection of judicial discretion harkens back to 1987, before the prison-skewed mandatory guidelines took effect.

In Kimbrough v. United States, 552 U.S. – -, the Court ruled that a sentencing judge has discretion and power to sentence below the Guidelines’ 100-1 mandatory crack cocaine sentence differential. www.law.cornell.edu/supct/html/06-6330.ZS.html In Gall v. United States, 552 U.S. – -, the Court affirmed a district judge giving a probation sentence to a defendant who had years before voluntarily withdrawn from a drug conspiracy and had led a law-abiding life since, eventhough the applicable Guidelines for the drug ecstasy, like the crack/powder cocaine disparity, were skewed to prison and called for three years in prison. The Gall Court rejected the government’s argument that only extraordinary circumstances could justify a sentence outside the Guidelines. www.law.cornell.edu/supct/html/06-7949.ZS.html

The day after the Kimbrough and Gall decisions, the United States Sentencing Commission, which had voted several times over the past ten years to end or modify the crack/powder cocaine disparity, only to be rebuffed by Congress each time, voted unanimously to make its newly approved reduction in sentence disparity in these kinds of cases retroactive. www.nytimes.com/2007/12/12/washington/12sentence.html and www.famm.org/ExploreSentencing.aspx

Then on December 18th, New Jersey Governor John Corzine announced that he would sign the legislative repeal of the death penalty in that state. This is the first such repeal since the 1970’s and legislatures in other states are actively considering moratoriums and repeal of the ultimate penalty, which is so fraught with documented problems, errors and injustice. www.deathpenaltyinfo.org The United Nations General Assembly voted the same day to approve a worldwide moratorium on the death penalty. www.un.org/News/Press/docs//2007/ga10678.doc.htm

FYI, the moratorium was opposed by the current governments of Iran, China and the United States.

Well, I guess you can’t get everything you want for Christmas, but maybe next year, God and the voters willing