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Economic Outlook: Executive Orders and Prison Reform

People in Prisons and Jails for Drug Offenses

The “Prisoners Paradox“–the idea that longer prison sentences, as opposed to their stated goal of deterring crime, actually perpetuate a criminal culture, has been a recurring theme here at Normative Narratives.

Their are undeniably certain instances where criminals pose a danger to society and must be kept behind bars. However, since stricter drug laws were enacted in the 1980s, U.S. prisons have filled up with largely non-violent offenders.

Keeping people in prison has obvious direct costs (as of 2010, the average cost for an inmate in a state prison was $31,246/yr; federal inmate was $28,284). According to the ACLU, with only 5% of the world’s population, the U.S. has 25% of the world’s prison population. In America, Prison is big business.

Further perpetuating this Prison-Industrial Complex is a plea-ultimatum offered to those accused of drug related crimes. According to a Human Rights Watch report, many drug offenders are “coerced” into a plead guilty to a crime, under threat of a harsher punishment if the case goes to trial:

Federal prosecutors routinely threaten extraordinarily severe prison sentences to coerce drug defendants into waiving their right to trial and pleading guilty, Human Rights Watch said in a report released today. In the rare cases in which defendants insist on going to trial, prosecutors make good on their threats. Federal drug offenders convicted after trial receive sentences on average three times as long as those who accept a plea bargain, according to new statistics developed by Human Rights Watch.

Prosecutors favor mandatory sentences because they enhance their leverage not only to get convictions via pleas, but to get defendants to cooperate with the government in the prosecution of others in exchange for a lower sentence.

“Going to trial is a right, not a crime,” Fellner said. “But defendants are punished with longer sentences for exercising that right.”

“Independent federal judges who have no personal or institutional stake in the outcome should have the final say over sentencing,” Fellner said. “Judges should have the discretion to ensure that defendants in drug cases receive sentences proportionate to their crimes, not their willingness to plead guilty.”

Of more interest to social scientists–and at the core of the “Prisoners Paradox”–are the social and communal effects of incarceration. Incarceration causes skills to atrophy and carries a social stigma; many ex-cons cannot find honest work and end up back in jail. Incarceration robs children of a parent. Children growing up in single-parent households are much more susceptible to a wide array of social issues.

One could not watch President Obama’s State of the Union address this Tuesday without hearing about “Executive Orders”. One example of an Executive Order which could have profound fiscal and socioeconomic benefits would be clemency for non-violent drug offenders:

 The Obama administration, in its effort to curtail severe penalties in low-level drug cases, is taking the unprecedented step of encouraging defense lawyers to suggest inmates whom the president might let out of prison early.

Speaking at a New York State Bar Association event Thursday, Deputy Attorney General James M. Cole said the Justice Department wanted to send more names to White House for clemency consideration.

“This is where you can help,” he said, in remarks the Justice Department circulated in advance.

Prison officials will also spread the word among inmates that low-level, nonviolent drug offenders might be eligible to apply for clemency.

The clemency drive is part of the administration’s effort to undo sentencing discrepancies that began during the crack epidemic decades ago.

“There are more low-level, nonviolent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today,” Mr. Cole said. “This is not fair, and it harms our criminal justice system.”

Testifying on Capitol Hill on Wednesday, Attorney General Eric H. Holder Jr. said the Bureau of Prisons now eats up 30 percent of the Justice Department’s budget, which strains the department’s ability to do other law enforcement missions.

Last August, Attorney General Eric Holder urged judges to consider less harsh sentences for non-violent drug offenders going forward. The clemency push is an important retroactive decision, which can ensure those who committed a crime “at the wrong time” don’t continue to face indefensibly long prison sentences.

One can already hear the criticisms now; President Obama, friend of the criminal! President Obama, defender of the lazy drug user! However, many people convicted of drug-related offenses experience injustice throughout the criminal justice system–from arrest, to trial, to sentencing. Letting criminals out of jail will not solve all of our problems. However, keeping people unjustly locked up for long periods of time has certainly perpetuated lingering socio-racial issues in America.

Clemency is not meant to undermine personal accountability; people need to suffer negative consequences for socially unacceptable behavior or there is way of deterring such behavior. What clemency and a reworked criminal justice system can accomplish is proportionality–ensuring that once someone “has learned their lesson”, they do not remain incarcerated to the detriment of all involved (except, I suppose, those who run the prison).

If there is a policy that will reduce the governments prison bill and may reduce future dependence on government welfare spending–without compromising the security of law abiding Americans–do we not owe it to ourselves as a country to pursue such a policy?

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Transparency Report: PRISM, The Declaration of Independence, The Constitution, Civil and Human Rights

There has been understandable concern over reports that leaked last week which tied the US government to the collection of peoples personal phone and internet records through a sweeping government program known as PRISM. One questions brings about more questions. Are whistle-blowers hero’s or traitors? Is PRISM a necessary component of national security or an infringement of civil rights? Has PRISM actually been effective in stopping terrorist attacks? Has the leak compromised America’s national security? Perhaps due to still murky details, American’s are still largely divided on these issues.

The New York Times editorial board was particularly one-sided in its assessment of the programs; such a response is not surprising, as a major representative of news Media, the New York Times ability to produce meaningful content relies on civil rights.

“Perhaps the lack of a broader sense of alarm is not all that surprising when President Obama, Senator Dianne Feinstein, the Democratic chairwoman of the Intelligence Committee, and intelligence officials insist that such surveillance is crucial to the nation’s anti-terrorism efforts.

But Americans should not be fooled by political leaders putting forward a false choice. The issue is not whether the government should vigorously pursue terrorists. The question is whether the security goals can be achieved by less-intrusive or sweeping means, without trampling on democratic freedoms and basic rights. Far too little has been said on this question by the White House or Congress in their defense of the N.S.A.’s dragnet.

The surreptitious collection of “metadata” — every bit of information about every phone call except the word-by-word content of conversations — fundamentally alters the relationship between individuals and their government.”

Tracking whom Americans are calling, for how long they speak, and from where, can reveal deeply personal information about an individual. Using such data, the government can discover intimate details about a person’s lifestyle and beliefs — political leanings and associations, medical issues, sexual orientation, habits of religious worship, and even marital infidelities. Daniel Solove, a professor at George Washington University Law School and a privacy expert, likens this program to a Seurat painting. A single dot may seem like no big deal, but many together create a nuanced portrait.

The effect is to undermine constitutional principles of personal privacy and freedom from constant government monitoring. The American Civil Liberties Union filed a lawsuit on Tuesday, challenging the program’s constitutionality, and it was right to do so.

The government’s capacity to build extensive, secret digital dossiers on such a mass scale is totally at odds with the vision and intention of the nation’s framers who crafted the Fourth Amendment precisely to outlaw indiscriminate searches that cast a wide net to see what can be caught. It also attacks First Amendment values of free speech and association.”

It should be noted that the open and multifaceted discourse relating to these leaks is hard evidence that our first amendment rights continue to be upheld despite government surveillance–sometimes you just have to look up to see that the sky isn’t falling.  

The ACLU is perfectly within its rights to file a lawsuit, but I believe the Supreme Court will ultimately uphold the constitutionality of PRISM. It is true that PRISM violates the 4th Amendment , in that the government is indiscriminately collecting “metadata” on Americans phone and internet data. The American people want answers. The European Commission wants answers (further complicating US-Euro Free Trade talks). And it seems answers we will get, although perhaps not all the answers we desire:

” The director of the National Security Agency said on Thursday that he would release more information about the top secret programs that sweep up vast quantities of communications data on people here and abroad, and vowed to clear up what he said were inaccuracies and misperceptions about how the programs work.”

“”We have pledged to be as transparent as possible,’ he said after emerging from a classified briefing with House members. “I think it’s important that you have that information. But we don’t want to risk American lives in doing that. So what we’re being is very deliberate in this process so that we don’t end up causing a terrorist attack by giving out too much information.’”

“Among the inaccuracies he said he wanted to clear up was that the N.S.A. is listening to Americans’ phone calls.”

“Mr. Rogers stressed that grave damage was done by the disclosure of the programs, which involve a huge database of the logs of nearly every domestic phone call made by Americans, and the collection of information from American Internet companies like Google without individual court orders if the request is targeted at non-citizens abroad.”

We will get answers, hopefully answers that shed light on previous  terrorists acts thwarted by PRISM. But it is also clear that we will not get answers that compromise national security.

The Constitution was drafted as a living document, a foundation upon which our nation could grow upon. There is no possible way our forefathers could have foreseen modern security risks–in revolutionary times wars were fought with single shot muskets! Reading into any document too literally, be it a legal or religious document, is likely to lead to extreme conservative values which ultimately restrict human rights. For these documents we’re written in different times, and need to be amended to remain relevant today. As a legal document, the Constitution was understandably focused on civil and political rights and liberties. 

The Declaration of Independence, as a more general declaration, was based on what are now known as human rights. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes…”

Subsequent constitutional amendments have been aimed at expanding the universality of civil rights (3/5’s compromise revoked, women’s and minority rights). It was never the intention of the founding fathers for civil rights to constrain the government from upholding basic human rights–such as the right to personal security. In fact, “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” referred to in Declaration of Independence are almost identical to Article 3 of The Universal Declaration of Human Rights ,”Everyone has the right to life, liberty and security of person”.

I would argue that America was founded not only on the principles of civil rights, but on the principles of human rights (which include civil rights). The idea government is responsible for providing the services and resources necessary for personal freedom and happiness is 100% consistent with human rights law. That these rights come before the power of government, and with the power to overthrow a government that does not fulfill these duties, places human rights even ahead of constitutional rights (as overthrowing the government would in effect render The Constitution null, but the legitimacy of such action is upheld right there in the Declaration of Independence).

Enough about 200+ year old documents; it is interesting to interpret the wording (many people have made careers out of it, our own President Barack Obama was a professor of Constitutional Law the University of Chicago, one of the most prestigious law schools in the world), but I would like to set my sites on something a bit more modern–the NYT editorial attack on the PRISM system.

The issue is not whether the government should vigorously pursue terrorists. The question is whether the security goals can be achieved by less-intrusive or sweeping means, without trampling on democratic freedoms and basic rights. Far too little has been said on this question by the White House or Congress in their defense of the N.S.A.’s dragnet.”

Of course there are other means of achieving our security goals; we have been actively attempting them for the past 12 years. The problem is that fighting wars is incredibly expensive and often counter-productive. We do not have to live within the constraints of colonial times in our legislation or our military conduct. Technology has evolved since the 18th century, allowing us to change the ways in which we protect our national security.

Expensive wars have compromised the ability of the government to pay for basic goods and services. Inequality of opportunity and social mobility are huge problems facing modern American society. Our civil and political rights cannot come at the cost of our economic and social rights. If gathering intelligence keeps American safer, and does so in a way that relies less on military expenditure, then the resources saved have to factor into societies C-B analysis at some point. 

The tangible benefits of reduced military expenditure should not be dismissed due to unfounded fear of government intrusion. The government has been collecting this data for years already. Has it changed the way people go about their lives? No, until a week ago we had no idea the program existed (although I am sure people have speculated) . Is there even one example of the government using personal information for nefarious or deviant purposes? Not that I have heard of.

The absence of evidence may not be the evidence of absence; but in America everyone is still innocent until proven guilty, and the government has yet to be proven guilty of misusing personal data ascertained via the PRISM program.

It would be nice if the government could be more transparent about its national security programs, but information travels to easily in today’s digital world–there is no way to release America’s national security information to Americans while not allowing anyone else to see it.

This is not 1776, the threat of tyranny is not a real one. In order to use our national resources in the most efficient way, we must focus them on containing real threats (terrorism, and general deterioration of equality of opportunity, meritocracy, and social mobility which is hurting America’s long run economic growth potential and compromising the “American Dream” itself), not hypothetical violations of our rights.