Sunday, January 25, 2009

Bail Constitutional Amendment Guilty Of Over-reaching

You can count us among those civil liberties advocates who were expected to oppose the Tennessee Constitutional amendment being pushed by a cadre of elected officials that include Shelby County Mayor AC Wharton, Attorney General Bill Gibbons, Sheriff Mark Luttrell, Shelby County Commissioner Steve Mulroy and Shelby County Commissioners Chair Deidre Malone.

Apparently, the political upside that comes from looking tough on crime trumps the Tennessee Constitutional. These elected officials have teamed up to push an amendment to the Constitution that would allow judges to deny bail. It feels an awfully lot like taking a nuclear warhead to kill a gnat, because Constitutional amendments should be reserved for the rarest of issues, and this one feels largely feels unnecessary.

Already, it would seem that in Shelby County courts, high bails are tantamount to denying bail for defendants in the first place, because by and large the people marching before a judge in our criminal courts have no capacity to pay hefty bails.

Unlighting The Ideals

That this push was publicized a few days after U.S. President Barack Obama said in his inaugural speech: “As for our common defense, we reject as false the choice between our safety and our ideals. Our founding fathers faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake.”

It seems that the push for the amendment to Tennessee Constitution seems all too rooted in fear and expediency, the same kind that our new president courageously confronts by underscoring the basic beliefs of our justice system with the announced closing of Guantanamo and secret prisons. Just as we try to get our balance following eight years of the Bush Administration’s thumbing its nose at well-accepted legal principles, our local politicians embark on a crusade whose political upsides seem too irresistible.

After all, who really cares if people charged with crimes are kept in jail until their cases are heard? Who really cares if we erode the purpose of bail to use the worst people among us for political benefit?

Paying Down

For one thing, we should care as taxpayers, but we should also care because there is such a temptation these days at the federal and local level to address safety issues by throwing more people in jail and stretching out sentences, even if it means that we have to wink at or change Constitutional guarantees and even it means that we do it while research shows that it has little effect.

It’s not too surprising that Attorney General Gibbons is in favor of this change in the Constitutional rights of Tennesseeans. He needs something to put some life into his bid for governor, and that impulse is destined to amplify now that he has announced his interest in entering the race for governor. In a race where he has as little chance for success as this one, it seems a given that he will pound his law and order themes as he criss-crosses Tennessee. In supporting the Constitutional amendment, he decried the criminal justice system’s “revolving door,” saying some defendants are released on bail the same day they are arrested.

We presume that he’d prefer for county taxpayers to foot the bill to pay for an insatiable appetite for new laws that keep people in jail longer (even though much research suggests that criminal activity is relatively age specific). For example, there’s no denying that headline-grabbing public calls for longer sentences for gun crimes pay off at the ballot box, but they also pay off in the bills that taxpayers have to pay to keep people in prison into their senior years long after they have passed the ages when they are highly unlikely to commit crimes.

Prophetic Words

It was about 25 years ago that Shelby County’s second mayor, Bill Morris, a former sheriff, rightly concluded that it was pure insanity for local government to think it could “build its way out of the crime problem” with more cells in bigger prisons when it makes more sense in economic and human terms to address the roots of crime. As he pointed out then, we could pay for all state prisoners to be sent to Ivy League universities more cheaply than paying for their yearly upkeep at state expense.

And yet, here we are, decades later, still wrestling with the symptoms rather than the problem itself. Still, today, it is more politically palatable to advocate policies that cost taxpayers $30,000 a year per prisoner than to crusade for interventions that could cost 80% less and open up options that could keep adolescents from lives of crime.

As former U.S. Attorney Veronica Coleman rightly points out, there is unquestionably different treatment of African-American juveniles in the justice system. The statistics are too compelling and the anecdotal evidence too strong to disagree with her conclusion that institutional racism is alive and well in the juvenile justice system, and that somehow, we have to invest money to move youths from paths to Juvenile Court and instead to the mainstream of our city.

Forgetting What Bail Is About

Here’s the thing about bail. It’s intended to guarantee the appearance of the defendant for court hearings and trial. That’s it. It’s not about punishment and it’s not punitive. It’s not intended to make money for the state and it shouldn’t be used by prosecutors as leverage to encourage defendants to cop a plea.

We abhor the smirk on Bernie Madoff’s face as much as anyone as he shuffles back and forth to court after bilking $50 billion out of good people in his megalomaniacal Ponzi scheme. Victims called for him to be locked up without bail, but his bail is working. He’s showing up in court, and just because we’re mad about what he’s done, bail still isn’t supposed to be punishment, because when it is set, the defendant is still is cloaked with the presumption of innocence.

We’ve heard public defenders – some who were working at the time for the future Shelby County Mayor when he was chief public defender Wharton -- and defense attorneys say this for years, and despite the theatrical portrayals of the justice system on television, it is nonetheless true. Bail is only intended to make sure that the defendant shows up for trial. Period. End of sentence.

Right Signal

In a letter written by Mayor Wharton, he said: “It sends the wrong signal to our neighborhoods when they see individuals accused of grave and serious crimes continuing to walk the streets…while the judicial process proceeds at a slow pace.” He is certainly right that the judicial process proceeds at a slow pace, and all these elected officials ought to band together to fix that. There is no greater deterrent to crime than quick and certain justice.

To us, the wrong signal is amending the Constitution of our state for some transitory benefit that does nothing to strike at the seedbeds for crime in the first place. As President Obama said during his campaign for the presidency, when we give up freedoms out of fear, it only means that the terrorists and the criminals have won.

They seem close to winning in Tennessee.


Aaron said...

"Still, today, it is more politically palatable to advocate policies that cost taxpayers $30,000 a year per prisoner than to crusade for interventions that could cost 80% less and open up options that could keep adolescents from lives of crime."

The bottom line is that the financial cost of locking up an offender will always be far more attractive because it requires the least involvment from its citizens.

Locking folks up provides immediate results and rapidly justifies itself where as less costly wholistic long term strategies don't work fast enough in the eyes of the impatient public.

Bill Gibbons said it best at the crime meeting last week. The revolving door is the best compromise for the government number crunchers - no additional tax burden for building prisons and no additional funding needed for rehab or preventative programs. He's a big advocate for stronger sentences but maybe he would have a softer approach if he was overwhelmed with a public that was willing to dig in and be part of the solution. I empathize with his sentiment eventhough I would rather see our citizens take it upon themselves to do something.

What are these other programs that are 80% less? Do you have some reports from other cities that have turned their cities around based on these programs? New York according the Gibbons turned its city around based on stiffer sentences. Curious.

Smart City Consulting said...

Law and order types always think that tough sentences alone turned NYC around. Then there are some that still think that the broken window theory really worked.

So much of crime rates has to do with birth rates, and we suspect that had something to do with the declines. Also, there were a number of innovation grassroots programs that dealt with the causes themselves.

There's one thing that is a given about the problems of cities. Anytime someone can point to one answer as the magic cure, get away from him. It's never one answer. It's a multitude of strategies that converge to create change.

Midtower said...

On this one, I can agree with SCM.

We have criminalized almost everything and then wonder why so many people are in prison.

We don't have a justice system. We have a legal system that occasional dispenses justice.

No to this amendment.

Anonymous said...

we spend about $7-8K/yr on schools. Though we should only steer money toward school models that are actually working - it is telling of a society that's willing to pay over $30K/year to imprison a person and 1/4 of that to educate him/her (which would work much better over the long haul in stymying the crime problem).

Aaron said...

I totally forgot about the birth rate issue. That's a big one!
It's also a touchy one to address.

"Anytime someone can point to one answer as the magic cure, get away from him."

But that's been the bread and butter of politicians for so many years. Perhaps with Obama being elected it's a sign of a dying breed. We'll see.

Anonymous said...

The birth rate issue is an equilibrium stopper for the whole city, it has knocked the economy for citizens off balance for an extended period and has caused unpredictably bad results. That's what things like that do. No surprise.
Judges do not set high bails for offenders of horrific crimes in Memphis. I have spent some time at 201 Poplar in the criminal division and observed how things go. There is no restraining order for victims of crimes who are not in relationships IN MEMPHIS. The judge would have to issue special instructions. The get ignored routinely and victims get re-victimized while the offender is out on bail, even innocent victims who do not know their victimizers. It doesn't always make the news so you don't know the stats on that.
Sometimes they follow their victims around to intimidate them. Sometimes they attempt to kill them to stop testimony and sometimes they succeed.
Sometimes the federal government dispenses money for penal systems to rehab or retrain prisoners, but, those cities never look for effective programs to retrain these offenders, they become repeat offenders.
Now in Memphis, in addition to the birthrate problem, we also had a school system problem that exacerbated it further by not dong reviews of staff for 20 years and unqualified teachers baby-sitting instead of teaching math in elementary schools in depressed areas, keeping them uneducated. No help there.
This made the area ripe for gang infiltration. They came. They don't educate conventionally and you don't need what they sell. They DEFINITELY intimidate and kill witnesses while on bail.
Now add to that the number of violent felons who've jumped bail as witnessed by the shelby county warrants information page, (type in the name of your street and LOOKOUT!) and other open warrants, non-reporting sex offenders, and other wanted criminals all over the country and Mexico came HERE to hide out and do some bad stuff while they are here, while on bail.

Maybe this is only one of the things that are happening and judges will have discretion, which they don't have now, and with a leap in population you will need a bigger prison for a while, but, effective rehab coupled with a few other things, as i have been harping on for months, will be effective.
There is a company that has designed a specialized and very very effective rehabilitation program. We should get them to put that in here instead of putting Michael Hooks in charge of ANY federal money.

The biggest trick for Memphis is not being traumatized by it's own past so much that when it's time to fight for its life, it can recognize it instead of knee-jerk politically correct answers that are equally ineffective as "pat answers".

"Law and Order types", you mean "ex victimized types".
Rehab, retrain, or retreat!

Anonymous said...

Think about solutions eh?
OK, the problem is poverty and crime and they go hand in hand here as you say. It's true, stats back that assertion up 100%.
Offenders are repeat offenders.
When they are out they make more victims and future offenders.
They need effective rehabilitation, the bane of the corrupt politician's existence and the proverbial death knell of the southern politician's career, or so it used to be, till it swelled up around their necks and started the choke hold on Memphis.
Let's say you do call a company who has been designed an effective rehab program that keeps stats and operates with perfect integrity and has successful working programs with very high success stats, such as Vanto Group, and you get a bunch of well rehabbed ex-felons/inmates who want to contribute to Memphis society.

What are they going to do for a living?
They need to be trained for a job that is a significant contribution to Memphis Future, such as sustainability construction and manufacturing projects and products.
Currently those don't exist here. They will have to be created. They need to be "for profit" If they are non profit they can be "self-funding".

How much will they be paid?
Currently they make enough to want to go back to prison, less than minimum wage.
Vicious Cycle #1.
They need to make enough money to support their families, have some form of health care (which Memphis has worked on with Church health care an other projects), and some form of retirement so they can look forward to "not sucking off the government or system. That can easily be done.

Where will they work?
They need to work on special projects, like retrofitting city buildings for alternative energy consumption, construction of alternative energy generators, Manufacture, shipping, and deployment of these systems in Memphis and outside our borders (for profit, remember that).

Where will they live?
When they get out of the system and are retrained and are certified "ready to work" status, they will need a place to live, they will need to have ownership of their premises/domain and they will have to work and pay for that like the rest of us which will be supported by the rest of this system.
That will also allay the fear of some other community of being swamped b ex-felons initially.

How will they learn to live successfully in community and continually generate the sense of community that is necessary to make a successful community?

Their "village" if you will, will include much on site counseling and support, training for success and community, team training, recovery from breakdowns, understanding and generating commitment to success and other programs. These programs will also be conducted in their workplace, their lives will become 100% about training for success.

What kind of success?
The kind many of us take for granted. It has been passed down to us in some form through our families since those of us who do take it for granted were not the victims of institutionalized family and economic destruction.
the way forward is to end that, not with handouts an institutionalized entitlements, but, with training for:
Family success,
Job success,
Community success,
Passing it down to the next generation success.
For the participants in this program it will become a way of life that naturally gets done. Lookout though, they will become a better us than us! Their training for success will be "on purpose and designed to succeed" instead of the usual, "I think this will work" that the never before incarcerated use with very spotty results, as documented by the 90% failure rate of businesses and institutions in Memphis and everywhere else.
Their children will get the sevret formula too, it will be handed down.

The word of the Lord is at our back:
The stone the builders rejected will become the cornerstone, and woe unto the person or entity that gets in the way of this going forward this time!
Do not defy the word of the Lord, it's always our guide.

Anonymous said...

Aaron, I beleive NY had Vanto Group design their rehab program.
Check it out.

victor said...

thanks for this great link

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